IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 393 of 2002() ----------------------------- CC.385/1994 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA CRA.7/2000 of ADDL.SESSIONS COURT, N. PARAVUR .................... REVN. PETITIONER(S): APPELLANT - ACCUSED --------------------- ABDUL NAZAR, S/O.ISMAIL, 36/658, CTD ROAD, COCHIN,ERNAKULAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): RESPONDENTS - STATE AND COMPLAINANT --------------- 1. STATE OF KERALA, REP. BY, HIGH COURT OF KERALA, ERNAKULAM. 2. C.T.BABU, CHAMMINIKODATH (HOUSE), PARATHU LANE, ALUVA. ADV. SRI.DINESH MATHEW J.MURICKEN FOR R2 R1 BY PUBLIC PROSECUTOR SRI K. MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 393 of 2002 ------------------------------------------------------ Dated: DECEMBER 8, 2009 ORDER The revision petitioner is the accused in C.C.No.385/1994 of the Judicial First Class Magistrate Court-I, Aluva, and the appellant in Crl.A.No.7/2000 of Additional Sessions Court, North Paravur. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for one year and also to pay a compensation of Rs.1,50,000/- to the claimant by the trial court. On appeal by the accused the lower appellate court confirmed his conviction, but modified the sentence to the effect that he was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for three months. The direction of the trial court to pay a compensation of Rs.1,50,000/- to the complainant was maintained. 2. The case of the revision 2nd respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint is that the accused borrowed Rs.1,50,000/- from the complainant and issued the cheque Ext.P1 which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P5 dated March 2, 1994, the accused did not repay the amount, CRL. R.P. 393 of 2002 2 which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the learned Magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused denied the entire transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. The conviction of the revision petitioner was confirmed in appeal, but the sentence was modified as mentioned above. He was also directed to pay a compensation of Rs.1,50,000/- to the complainant. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the revision 2nd respondent. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? CRL. R.P. 393 of 2002 3 II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. PW.1 was examined and Exts.P1 to P7 were marked on the side of the complainant to prove his case. I have gone through the evidence of PW.1. No serious discrepancies were pointed out in his evidence to discredit his evidence. Further, his evidence is supported by Exts.P1 to P7. 8. The case of the accused was that no amount was received under Ext.P1 and that therefore it is without consideration. No evidence was adduced by the accused before the trial court to prove his case. That apart, the accused has admitted the issuance of the cheque Ext.P1. Therefore the presumption under secs.118 and 139 of the Negotiable Instruments Act is available for the complainant. The accused has failed to rebut the above presumption effectively. Crl.Rev.Pet.No. 1395 of 2001() Therefore the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW.1 and coming to the conclusion that the accused has committed the offence punishable under secs.138 of the Negotiable Instruments Act. Therefore the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. Point No.II 9. As regards the sentence, the trial court has imposed a sentence of rigorous imprisonment for one year and to pay a CRL. R.P. 393 of 2002 4 compensation of Rs.1,50,000/-. On appeal the sentence was modified to the effect that he is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/-. He was also directed to pay a compensation of Rs.1,50,000/- to the complainant. The transaction is of the year 1994. Therefore I feel that imprisonment till the rising of court and a fine of Rs.1,50,000/- would meet the ends of justice. In the result, the conviction of the accused under sec.138 of the Negotiable Instruments Act is confirmed. He is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.1,50,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to the complainant/PW.1 as compensation as provided under sec.357(1) of Cr.P.C. . The bail bonds of the accused are cancelled. Three months time is granted for payment of fine. The revision petitioner shall surrender before the trial court on 30.12.2009 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.2700/2002 Dismissed. 8.12.2009. P.Q. BARKATH ALI, JUDGE mt/-