IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.Rev.Pet.No. 331 of 2005(B) ------------------------------ CRA.227/2004 of ADDL.SESSIONS COURT, KOTTAYAM CC.101/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------- D.SREEKUMAR, KOOVAPUZHA HOUSE, EDAYARIKKAPUZHA, KANGAZHA P.O. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS/ RESPONDENTS/COMPLAINANT -------------------------------------- 1. PAPPACHAN MATHEW, VETTIYATHU BHAGAVATHI PARAMBIL, NALUKODI, PAIPAD VILLAGE, CHANGANACHERRY. 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.R.REJI FOR R1 SMT.SHIVA RAJA RESHMI FOR R1 PUBLIC PROSECUTOR SRI.SBU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.2207/2005 IN CRL.R.P.NO.331/2005 DISMISSED 18-3-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.331 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2011 ORDER Revision petitioner is the accused in C.C.No.101/2003 on the file of Judicial First Class Magistrate Court II ( Mobile), Kottayam and appellant in Crl.Appeal No.227/2004 of Additional Sessions Court, Kottayam. The learned Magistrate by judgment dated April 15, 2004 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months and to pay a compensation of Rs. 50,000/-, in default to undergo simple imprisonment for one month. On appeal by the accused, the learned Sessions Judge by judgment dated October 26, 2004 confirmed his conviction, but modified the sentence to simple imprisonment for one month and to pay a compensation of Rs. 50,000/-, in default to undergo simple imprisonment for one month. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by Crl.R.P.No.331/2005 2 him as PW2 before the trial court and as detailed in the complaint was that the accused borrowed Rs. 50,000/- from him on May 28, 2002 and to discharge that liability, he issued the cheque Ext.P1 dated May 31, 2002 which when presented for collection 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, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 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. Pws 1 and 2 were examined and Exts.P1 to P8(a) were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. Accused was examined as DW1 and Exts.D1 to D6 series were marked on his side. 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 Crl.R.P.No.331/2005 3 and sentenced him as aforesaid. On appeal by the accused, the learned Sessions Judge confirmed his conviction, but modified the sentence as aforesaid. The accused 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 PW2 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 P8(a). 8. The specific case of the accused as suggested during the cross examination of PW2 and as stated by him when questioned under Section 313 Cr.P.C. and as testified by him as DW1 was that he Crl.R.P.No.331/2005 4 borrowed Rs.25,000/- from one Tomy Jose and as a security for the same he issued a cheque which was misused by the complainant and created Ext.P1. The evidence adduced by the accused does not in any way help him to prove his case. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque 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. 9. 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 10. As regards the sentence, the Trial court sentenced him to undergo simple imprisonment for three months and to pay a compensation of Rs. 50,000/-, in default to undergo simple Crl.R.P.No.331/2005 5 imprisonment for one month. On appeal by the accused, the learned Sessions Judge modified the sentence to simple imprisonment for one month and to pay a compensation of Rs. 50,000/-, in default to undergo simple imprisonment for one month. 11. When the revision petition came up for hearing today, learned counsel for the revision petitioner submitted that the revision petitioner has paid the entire amount due under the cheque and produced the receipt for the same which is also admitted by the counsel for the first respondent/complainant. Therefore a lenient view is taken and I feel that a sentence of fine of Rs.1,000/- with default sentence would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Revision petitioner is sentenced to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for two weeks. His bail bonds are cancelled. One month time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.331/2005 6