IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Crl.Rev.Pet.No. 462 of 2001() ----------------------------- CRA.218/2000 of SESSIONS COURT, KOTTAYAM ST.250/1995 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- BENNY SCARIA, VENATHU VEEDU POONJAR, THEKKAEKKARA VILLAGE BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------- 1. A.M.VARGHESE, S/O MANI, ROS COTTAGE POONJAR THEKKEKKARA VILLAGE 2. STATE OF KERALA, REP. BY THE STATE PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ADV. SRI.M.RAMESH CHANDER FOR R1 SRI.M.VIJAYAKUMAR FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.462 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of November, 2009 ORDER The revision petitioner is the accused in S.T.No.250/1995 of Judicial First Class Magistrate Court, Erattupetta and appellant in Crl.Appeal No. 218/2000 of Sessions Court, Kottayam. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for a period of three months. His conviction and sentence was confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as testified by him as PW1 and as detailed in the complaint before the trial court was that accused borrowed Rs. 1,50,000/- from him on two occasions and to discharge that debt, he has issued the cheque Ext.P1 dated 23-12-1991 drawn on the Vijaya Bank, Kottayam Branch which when presented for collection was returned dishonoured for want of Crl.R.P.No.462/01 Page numbers sufficiency of funds in the account of the accused in the bank and that inspite of the notice - Ext.P3 dated 26/12/1991, the accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant PW1 and took cognizance of the case. The accused/revision petitioner on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. PWs 1 to 4 were examined and Exts.P1 to P6 were marked on the side of the complainant before the trial court. When questioned under Section 313 Cr.P.C. by the Magistrate, the accused denied the entire transaction. DWs 1 and 2 were examined and Ext.D1 was marked on the side of the accused before the trial court. 4. The learned Magistrate on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. The lower appellate court confirmed his conviction and sentence. The accused has now come up Crl.R.P.No.462/01 Page numbers in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act 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 6. Complainant besides himself as PW1 examined PWs 2 to 4 in support of his case. PW3 is the Manager of the Bank. PW2 is his wife. PW4 is the Post man who served notice to the accused. I have gone through the evidence of PW1. He testified in terms of the complaint. The cross examination was not successful in shaking his evidence. His evidence is supported by PW3 his wife. He has categorically denied the suggestion that he has stolen the cheque of the accused and created Ext.P1. Therefore in my view the trial court is perfectly justified in believing his evidence. His evidence is supported by PW2, the Manager of the Bank and PW4 the Postman who served Crl.R.P.No.462/01 Page numbers notice to the accused. 7. Counsel for the revision petitioner argued that the complainant has not proved the passing of consideration under Ext.P1. There is no substance in the above argument. PW1 as well as PW3 categorically stated about the passing of consideration . The trial court as well as the lower appellate court has chosen to believe their evidence. I find no reason to come to a different conclusion. 8. An attempt was made on the side of the accused to show that an agreement was executed by the revision petitioner and first respondent in discharge of the entire liability. But on going through Ext.D1, there is nothing there to show that it covers the transaction in question. Therefore I am inclined to confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 9. As regards the sentence, the trial court imposed simple imprisonment for three months which is confirmed in appeal. The transaction is of the year 1991. Therefore, I feel that a sentence of fine of Rs. 1,50,000/- being the cheque amount and imprisonment till the Crl.R.P.No.462/01 Page numbers rising of court would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The revision petitioner/accused 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 a period of six months. Fine amount, if realised, shall be paid to PW1/complainant as compensation as provided under Section 357(1) Cr.P.C. His bail bonds are cancelled. Revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. Two month's time is granted for payment of fine amount. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.462/01 Page numbers Crl.R.P.No.462/01 Page numbers Crl.R.P.No.462/01 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.462/01 Page numbers Crl.R.P.No.462/01 Page numbers