IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.Rev.Pet.No. 670 of 2001() ----------------------------- CRA.357/1998 of II ADDL.SESSIONS COURT, ERNAKULAM CC.665/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- V.P.BABU, S/O PAULOSE P.T.MENIAL, GOVT. U.P.SCHOOL NORTH MARADY, MUVATTUPUZHA P.O. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): RESPONDENTS/ STATE AND COMPLAINANT --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 2. A.S.SASIDHARAN, ALUNI KUNNATHIL HOUSE MEKKADAMPU P.O., AMPALAMPADY MUVATTUPUZHA ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R2 SRI.R.JAYAKRISHNAN FOR R2 PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.670 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2009 ORDER The revision petitioner is the accused in C.C.NO.665/96 of Judicial Magistrate of First Class, Muvattupuzha and appellant in Crl.Appeal No. 357/1998 of Second Additional Sessions Court, Ernakulam. The accused was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.20,000/- , in default, to undergo simple imprisonment for a further period of three months by the learned Magistrate. Fine amount , if realised, Rs. 15,000/- was directed to be paid to the complainant as compensation under Section 357(1) Cr.P.C. The learned Sessions Judge on appeal confirmed his conviction, but sentence is modified to the effect that the revision petitioner was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs. 4,000/- , in default, to undergo simple imprisonment for a further period of 15 days. CRRP.No.670/01 Page numbers 2. The case of the revision first respondent/complainant as testified by him as PW1 and as detailed in the complaint before the lower court was that the accused issued the cheque - Ext.P1 for Rs. 15,000/- on May 2, 1996 drawn on the State Bank of Travancore, Muvattupuzha Branch to discharge his liability towards the complainant 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 inspite of the notice - Ext.P4 the accused did not repay the amount and thus he has committed 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. PW1 was examined and Exts.P1 to P7 were marked on the side of the complainant before the trial court. When questioned under Section 313 Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. CRRP.No.670/01 Page numbers 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. On appeal by the accused, the lower appellate court confirmed the conviction, but modified the sentence as found above. Now the accused has come up in revision challenging his conviction and sentence. 5. Arguing the revision , Sri. Peeyus A.Kottam , learned counsel for the revision petitioner submitted that the cheque Ext.P1 was issued by the accused as a security and that the accused has paid the entire amount due under Ext.P1 and that therefore the trial court should have acquitted the accused. Counsel for the first respondent/complainant would support the judgments of both the courts belows. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner in Section 138 of the Negotiable Instruments Act by the trial court which is confirmed CRRP.No.670/01 Page numbers in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. The complainant as PW1 testified before the trial court in terms of the complaint . I have gone through the evidence of PW1, I find no suspicious inconsistencies or discrepancies in his evidence so as to discredit his evidence. Further his evidence is supported by Exts.P1 to P5. That apart, as the accused has admitted the issuance of cheque - Ext.P1, presumptions under Sections 118 and 139 are available for the complainant. The accused did not adduce any evidence to to rebut the above presumption. Therefore, in my view, the trial court as well as the lower appellate court is perfectly justified in finding that the accused has issued the cheque Ext.P1 to discharge his liability towards PW1 which when presented for collection was dishonoured for want of sufficiency of funds in the account of the accused in the bank and that inspite of notice Ext.P4, the accused did not repay the amount which is an offence punishable under Section 138 CRRP.No.670/01 Page numbers of the Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act rendered by the trial court which is confirmed in appeal. Point No.2 8. As regards the sentence, the trial court imposed simple imprisonment for one year and to pay a fine of Rs. 20,000/- , in default, to undergo simple imprisonment for three months. The trial court has also ordered to pay an amount of Rs. 15,000/- out of the fine amount to the complainant PW1 as compensation as provided under Section 357 (1) Cr.P.C. The lower Appellate Court has reduced the sentence to simple imprisonment for two months and a fine of Rs. 4,000/-, in default, to undergo simple imprisonment for a further period of 15 days. The cheque is of the year 1996. Further the accused would be aged 50 now. Taking into consideration all these aspects, I feel that a fine of Rs. 15,000/- would meet the ends of justice. Fine amount, if realised, shall be paid to PW1 as compensation as provided under Section 357(1) of Cr.P.C. CRRP.No.670/01 Page numbers 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 sentence is modified to the effect that revision petitioner is sentenced to pay a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for one month. Fine amount, if realised, shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. Two month's time is granted for payment of fine amount. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. CRRP.No.670/01 Page numbers