IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.Rev.Pet.No. 754 of 2005(D) ------------------------------ CRA.73/2004 of ADDL.SESSIONS JUDGE ( ADHOC II), ERNAKULAM CC.1106/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): --------------------- N.R.SHAJI, AGED 40, S/O.RAJAN, NANIYATTIL HOUSE, KUSUMAGIRI P.O., KAKKANADU, ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.JACOB SEBASTIAN SRI.PRAVEEN K. JOY RESPONDENT(S): --------------- 1. VINEETH.K.MATHEW, HOUSE NO.5/31,M ILLIKKAPPADY, EROOR P.O., TRIPUNITHURA, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, ERNAKULAM. ADV. SRI.SHAJI P.CHALY FOR R1 SMT.P.JAYA FOR R1 SMT.H.ROSHNI FOR R1 PUBLIC PROSECUTOR SRI.K.B.RAMANAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.3813/2005 IN CRL.R.P.No.754/2005 DISMISSED 31-01-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.754 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of January, 2011 ORDER Revision petitioner is the accused in C.C.No.1106/1999 on the file of Addl.Chief Judicial Magistrate, Ernakulam and appellant in Crl.Appeal No.73/2004 of Addl. Sessions Court, Ernakulam. The learned Magistrate by judgment dated December 17, 2003 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.75,000/-, in default to undergo simple imprisonment for one month. Out of the fine amount imposed, Rs. 70,000/- was ordered to be paid as compensation to PW1 under Section 357 Cr.P.C. which is confirmed in appeal by judgment dated January 10, 2005. 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 detailed in the complaint was that the accused borrowed Rs. 45,000/- from him and to discharge that liability, he issued the cheque Ext.P2 which when presented for Crl.R.P.No.754/2005 2 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.P5, 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. PW 1 was examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. DW1 and DW2 were examined and Ext.D1 evidence was marked on his side. As DW2 accused would say that he borrowed Rs. 50,000/- from DW1 and gave a blank signed cheque as security, that DW1 in turn borrowed Rs. 50,000/- from the complainant and gave him the said cheque as security and that the complainant misused the said cheque and created Ext.P2. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Crl.R.P.No.754/2005 3 Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. 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 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 P7. 8. The specific case of the accused as testified by him as DW2 was that he borrowed Rs. 50,000/- from DW1 and towards that amount, he issued a blank signed cheque and that DW1 in turn borrowed Rs. 50,000/- from the complainant and gave him the said cheque as Crl.R.P.No.754/2005 4 security and that the complainant misused that cheque and created Ext.P2. But both the courts below have disbelieved the evidence of DW1 and DW2 on this aspect. I find no special reason to come to a different conclusion. That apart, as the issuance of cheque Ext.P2 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. The evidence adduced on the side of the accused was not sufficient enough 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 imposed a sentence of simple imprisonment for one month and to pay fine of Rs. 75,000/- in default to undergo simple imprisonment for one month which is confirmed in appeal by the lower appellate court. Taking into Crl.R.P.No.754/2005 5 consideration the fact that the transaction is of the year 1999, I feel that a sentence of imprisonment till the rising of court and a direction to pay a compensation of Rs.70,000/- to PW1 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. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 70,000/- to PW1, in default to undergo simple imprisonment for one month. Two months' time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before February 28, 2011 to suffer the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.754/2005 6