IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 933 of 2001(A) ------------------------------ ( CRA.NO.29/1998 OF SESSIONS COURT, KOTTAYAM CC.NO.182/1993 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM) REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- A.C.GEORGE, ALUMMOOTTIL HOUSE VADAVATHOOR P.O. KOTTAYAM BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT(S)/RESPONDENT/COMPLAINANT AND THE STATE --------------- 1. T.K.SAHADEVAN, KANAKKALAYIL HOUSE PERUMPAIKADU P.O., PARAMPUZHA 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ADV. SRI.PEARLY JOSE FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.933 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.182/1993 of Chief Judicial Magistrate Court, Kottayam and appellant in Crl.Appeal No.29/1998 of Sessions Court, Kottayam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to pay a fine of Rs. 70,000/- , in default, to undergo simple imprisonment for three months by the trial court which is confirmed in appeal. 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 accused borrowed Rs. 50,000/- and later Rs. 10,000/- from the complainant and to discharge that liability the accused issued the cheques Exts.P1 dated March 15, 1993 and Ext.P2 dated March 20, 1993 drawn on the Kottayam branch of Kottayam Co-operative Bank which when presented for collection was returned dishounoured for Crl.R.P.No.933/2001 Page numbers want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P6 dated April 29, 1993, 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 P9 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. On th side of the accused DWs 1 and 2 were examined and Ext.D1 was marked. DW2 is the accused. DW1 is the DYSP who allegedly mediated the matter between the revision petitioner and the complainant. 4. The trial court 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 which is confirmed in appeal. The accused Crl.R.P.No.933/2001 Page numbers has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner. Counsel for the first respondent remained absent. 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. PWs 1 and 2 were examined and Exts.P1 to P9 were marked on the side of the complainant to prove the guilt of the accused. PW1 is the complainant. PW2 is the Bank Manager. PW1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P9 and the evidence of PW 2. 8. The specific case of the accused is that he joined in a kuri Crl.R.P.No.933/2001 Page numbers conducted by PW1 , that some amount is due from him to the complainant for which he issued the cheques Exts.P1 and P2. It was further stated that the complainant has filed a complaint before the DYSP against the accused and one Chandrasekharan regarding the same matter and the matter was settled before the DYSP which is evidenced by Ext.D1 and that therefore no amount is due to the complainant from the accused. DW2 when re-examined admitted that still Rs. 16920/- is due from him to the complainant. But as the accused admits the execution of cheques Exts.P1 and P2, presumptions under Section 118 and 139 of Negotiable Instruments Act is available for the complainant. The accused has failed to rebut the above presumption by adducing necessary evidence. It is also pertinent to note that the accused has not sent any reply to the notice sent by the complainant. For all these reasons, in my view the trial court as well as the lower appellate court is justified in rejecting the contention of the revision petitioner and accepting the case of the complainant and coming to the conclusion that accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. That Crl.R.P.No.933/2001 Page numbers being so, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 9. As regards the sentence, the trial court imposed a fine of Rs. 70,000/- in default to undergo simple imprisonment for three months which is confirmed in appeal. In this revision, counsel for the revision first respondent/complainant remained absent. Further it is admitted by PW1 that the cheques were issued in connection with the chitty transaction. Taking into consideration all these aspects, I feel that a a sentence of imprisonment till the rising of court and a fine of Rs. 15,000/- would meet the ends of justice. In the result, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for three months. Fine amount, if realised, shall be paid to the complainant as compensation as provided under Section 357(1) Crl.R.P.No.933/2001 Page numbers Cr.P.C. Counsel for the revision petitioner submits that accused has already deposited Rs. 15,000/- towards the fine amount before the trial court. Complainant will be entitled to withdraw the same. Revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.933/2001 Page numbers