IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Crl.Rev.Pet.No. 2621 of 2004(C) ------------------------------- CRA.100/2003 of SESSIONS COURT, KOZHIKODE CC.435/2001 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- GEORGE THOMAS @ CHIRACKAL APPACHAN, S/O.THOMAS, KAREEKKUNNEL, CHEMBRA P.O. KAYANNA. BY ADV. SRI.D.KISHORE SMT.MEERA GOPINATH RESPONDENT(S): COMPLAINANT AND STATE: ------------------------------------- 1. V.V.MARKOSE, S/O.VARGHESE, VATTIKKATTIL, KAYANANNA AMSOM, ONHIL DESOM, P.O.CHAKKITTAPPARA. 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SAJU.S.A FOR R1 SRI.P.S.MURALI FOR R1 PUBLIC PROSECUTOR SRI.P.K.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2621 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2010 ORDER Revision petitioner is the accused in C.C.No.435/2001 of Judicial First Class Magistrate Court II, Perambra and appellant in Crl.Appeal No.100/2003 of Sessions Court, Kozhikode. On a private complaint filed by the first respondent, the accused/revision petitioner was found guilty of the offence punishable under Section 138 of Negotiable Instruments Act. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs. 40,000/- under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for two months by the trial court by judgment dated January 20, 2003 which is confirmed in appeal by the lower appellate court by judgment dated July 27, 2004. 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 Crl.R.P.No.2621/2004 2 that towards the value of Arecanuts sold to the accused by the complainant, accused issued two cheques Exts.P1 and P2 for Rs.20,000/- each dated July 28, 2001 drawn on the South Malabar Gramin Bank, Chekkittapara branch which when presented for collection were 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 dated September 19, 2001, 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 P10 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the transaction and further stated that he has given two signed blank cheques to one Ammad which have been misused by the complainant and created this case. No defence evidence Crl.R.P.No.2621/2004 3 was adduced. 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 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 and the counsel for the revision first respondent. 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 was examined as PW1 and Exts.P1 to P10 Crl.R.P.No.2621/2004 4 were marked on the side of the complainant to prove the guilt of the accused. I have gone through his evidence. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P10. 8. The specific case of the accused as suggested during cross examination and as stated by him when questioned under Section 313 Cr.P.C. was that the two blank signed cheques were given to one Ammad and that the complainant managed to obtain the same and filed this false complaint against him. No evidence was adduced by 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 cheques Ext.P1 and P2 were admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence Crl.R.P.No.2621/2004 5 punishable under Section 138 of Negotiable Instruments Act and convicting him thereunder. 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 three months and to pay a compensation of Rs. 40,000/-, in default to undergo simple imprisonment for a further period of two months which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 2001, I feel that a substantive sentence of imprisonment till the rising of court and a compensation of Rs.40,000/- as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for two months 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 Crl.R.P.No.2621/2004 6 a compensation of Rs. 40,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for two months. Two month's time is granted for payment of compensation. The amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation amount awarded. The complainant is permitted to withdraw that amount. The revision petitioner shall surrender before the trial court on or before 15/08/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2621/2004 7