IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 Crl.Rev.Pet.No. 887 of 2004(A) ----------------------------- CRA.83/2002 of SESSIONS COURT, KOZHIKOE CC.282/2000 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): APPELLANT - ACCUSED ------------------------------- PARAMBATH M.B.PRADEEPAN S/O. BALAN NAIR, KAVUNGULLA CHALIL, CHEMBANODE P.O., KOYILANDI TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): RESPONDENTS - COMPLAINANT AND STATE -------------------------- 1. JACOB GEORGE, S/O. GEORGE, IRAVINCHIRA ROAD, AVADUKKA DESOM, KOYILANDY TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 SRI.P.V.KUNHIKRISHNAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 887 of 2004 ------------------------------------------------------ Dated: SEPTEMBER 29, 2010 ORDER This revision is by the accused in C.C.No.282/2000 on the file of the JFCM Court-II, Perambra and the appellant in Crl.A.83/2002 on the file of the Sessions Court, Kozhikode. He was convicted under Sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months by the Magistrate by judgment dated January 17, 2002 which is confirmed in Crl.A.83/2002 by the lower appellate court by judgment dated February 13, 2004. The accused has come up in revision challenging his conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as stated in the complaint is that the accused borrowed Rs.40,000/- from him on December 15, 1999 and to discharge that liability he issued the cheque Ext.P1 on the same day 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 in spite of the notice Ext.P3 dated April 24, 2000, the accused did not repay the amount. Therefore the complainant filed a private complaint before the trial court under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate CRL. R.P. 887 of 2004 2 recorded the sworn statement of the complainant and took cognizance of the offence. The accused when appeared before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. The complainant was examined as PW.1 and Exts.P1 to P7 were marked on his side. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction and submitted that he has issued a blank cheque as security to the complainant which he has misused and created Ext.P1 cheque. On the side of the accused he got himself examined as DW.2 and examined another witness as DW.1 and got marked Exts.D1 (series) to D3(series). 4. Heard the counsel for the revision petitioner/accused and the revision 1st respondent/complainant. 5. The following points arise for consideration:- I. Whether the conviction of the revision petitioner by the trial court under sec.138 of the Negotiable Instruments Act, which is confirmed in appeal, can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? POINT NO.I 6. The revision 1st respondent/complainant as PW.1, testified in a convincing manner in terms of the complaint before the trial court. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by CRL. R.P. 887 of 2004 3 Exts.P1 to P7. 7. The case of the revision petitioner/accused as testified by him as DW.2 was that the complainant was the General Secretary of Panthirikkara unit of Vyapari Vyavasayi Ekopana Samithi, that the accused was a member of the said Unit, that the accused issued a blank signed cheque to him for releasing a kuri amount which was misused by the complainant and created Ext.P1. The trial court as well as the lower appellate court disbelieved their evidence. On going through their evidence I do not find any reason to come to a different conclusion. That apart, as the accused has admitted the execution of the cheque Ext.P1, the presumption available under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. Therefore I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of the complainant and coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. That being so, the conviction of the accused under sec. 138 of the Negotiable Instruments Act is confirmed. POINT No.II 8. As regards the sentence, the learned Magistrate imposed a CRL. R.P. 887 of 2004 4 sentence of simple imprisonment for three months. The lower appellate court has confirmed the same in appeal. As the transaction is of the year 1999, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.40,000/- would meet the ends of justice. 9. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under Sec.138 of the Negotiable Instruments Act is confirmed. 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.40,000/-, in default to undergo simple imprisonment for three months. Counsel for the revision petitioner submits that he has already deposited Rs.40,000/- as a pre- condition for suspending the sentence. The said amount shall be adjusted towards the fine amount in question. The complainant is permitted to withdraw that amount from the trial court. His bail bonds are cancelled. The revision petitioner/accused shall surrender before the trial court on or before October 30, 2010 to suffer the sentence. The Crl.R.P. is disposed of as found above. P.Q. BARKATH ALI, JUDGE mt/-