IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 Crl.Rev.Pet.No. 3305 of 2004() ------------------------------ CRA.602/2003 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.1012/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------------------------- MOHAMMED, S/O.EDATHETHARA ABDULLA, MALAPPALLIPURAM, THRISSUR DISTRICT. BY ADV. SRI.SHEEJO CHACKO RESPONDENT(S)/ COMPLAINANT AND STATE: ------------------------------------------------------------------- 1. SHAFEEK, S/O.HASSANAR, MANAKULANGARA PARAMBIL HOUSE, KOMBADINJAMAKAL, THAZHAKKAD THRISSUR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.SREEKUMAR (CHELUR) SRI.FRANCO T.J. BY PUBLIC PROSECUTOR MR. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P No.3305 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of January, 2011 O R D E R Revision petitioner is the accused in C.C.No.1012/2001 of Judicial First Class Magistrate Court, Chalakudy and appellant in Crl.Appeal No.602/2003 on the file of III Addl. Sessions Court (Fast Track Court No.1), Thrissur. He was convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 70,000/- in default to undergo simple imprisonment for three months by the learned Magistrate by judgment dated August30, 2003. On appeal by the accused the learned Sessions Judge confirmed his conviction, but modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs.75,000/- to the complainant, in default to undergo simple imprisonment for three months. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as stated in the complaint in brief is this: Accused borrowed Rs.70,000/-from the complainant and to discharge Crl.R.P No.3305 OF 2004 2 the liability he issued Ext.P1 cheque for the said amount on February 26, 2001 which when presented for encashment was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated March 23, 2001, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. Therefore the complainant filed a complaint before the trial Court. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. Accused got himself was examined as DW1 before the trial court. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the learned Sessions Judge confirmed his conviction, but modified the sentence as mentioned above. The accused Crl.R.P No.3305 OF 2004 3 has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The specific case of the accused as testified by him as DW1 before the lower court was that, in connection with a car transaction he gave a blank signed cheque as security to the complainant which was misused by him and created Ext.P1. But no evidence was adduced by the accused before the trial court to prove his case. Therefore in my view, both the courts below are justified in rejecting the above case of the accused. Crl.R.P No.3305 OF 2004 4 9. The counsel for revision petitioner argued that the trial court did not consider the evidence of DW1 and that therefore the conviction and sentence of the revision petitioner by the trial court has to be set aside. There is no force in the above contention. In my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheques Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 10. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 11. As regards the sentence, the learned Magistrte imposed a sentence of simple imprisonment for six months and to pay a fine of Rs. 70,000/-, and in default to undergo simple imprisonment for a further period of three months. The learned Sessions Judge modified the sentence Crl.R.P No.3305 OF 2004 5 to imprisonment till the rising of the court and to pay a compensation of Rs.75,000/- and in default to undergo simple imprisonment for three months'. I find no ground to reduce the sentence further. That being so the conviction of the accused by the trial court which is confirmed in appeal has to be upheld and the sentence imposed by the trial court as modified by the lower appellate court has to be confirmed. In the result, the revision petition is dismissed. The conviction of the accused under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal by the lower appellate court is upheld. The sentence imposed by the trial court which is modified in appeal is also confirmed. The accused shall surrender before the trial court on or before 28.2.2011 to suffer the sentence. Three months' time is granted for payment of compensation. P.Q.BARKATH ALI, JUDGE mns