IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 Crl.Rev.Pet.No. 898 of 2005() ----------------------------- CRA.718/2003 of ADDL. SESSIONS COURT (ADHOC), THRISSUR ST.4431/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S)/APPELLANT: ---------------------------------------------------- V.P.KURIAPPAN, S/O. PAILY, VAKKAYIL HOUSE, PADINJARE ANGADI, KUNNAMKULAM. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S)/ RESPONDENTS: -------------------------------------------------- 1. T.J.ANTONY S/O. JOSEPH, THARAKAN HOUSE, MUTTOM P.O., ALOOR VILLAGE, TALAPPILLY TALUK, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. MUHAMMED PUZHAKKARA ADV. SRI.K.PADMANABHAN FOR R1 SRI.P.K.MANOMOHANAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. ----------------------------------------- Crl..R.P NO.898 OF 2005 ---------------------------------------- Dated this the 20th day of January, 2011 O R D E R Revision petitioner is the accused in S.T.No.4431/2000 on the file of Judicial First Class Magistrate Court II, Thrissur and appellant in Crl.Appeal No.718/2003 of III Addl. Sessions Judge (Adhoc) Fast Track No.1, Thrissur. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for a period of one month and to pay a compensation of Rs. 50,000/-, in default to undergo simple imprisonment for a further period of one month by the learned Magistrate by judgment dated October 8, 2003. On appeal by the accused the learned Sessions Judge confirmed his conviction but modified the sentence to imprisonment till the rising of the Court and to pay a compensation of Rs.50,000/-to the complainant in default to undergo simple imprisonment for one month. 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 stated in the complaint in brief is this: Crl..R.P NO.898 OF 2005 2 Accused borrowed Rs.50,000/-from the complainant and to discharge the liability he issued Ext.P1 cheque for the said amount on January 27, 2000 which when presented for encashment was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated February 10, 2000, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. Therefore the complainant filed this complaint before the trial Court. 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. Complainant was examined as PW1 and and Exts.P1 to P6 were marked on the side of the complainant. On the side of the accused Ext.D1 reply notice was marked. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. 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 Crl..R.P NO.898 OF 2005 3 thereunder and sentenced him as aforesaid. On appeal by the accused learned Sessions Judge confirmed his conviction but modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant. 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 as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The specific case of the accused is that the daughter of the complainant was working in the press run by the accused and that he gave a blank signed cheque as security to the complainant which was misused by him and created Ext.P1. No evidence was adduced by the accused to prove his case. Further Crl..R.P NO.898 OF 2005 4 as the accused has admitted the issuance of Ext.P1 cheque the presumptions under Sections 118 and 139 of Negotiable Instruments Act is available for the complainant. No evidence was adduced by the accused to rebut the above presumption effectively. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. 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 two months and to pay a compensation of Rs. 50,000/-, in default to undergo simple imprisonment for a further period of one month. The learned Sessions Judge on appeal modified the sentence to imprisonment till the rising of the court and to pay a compensation of Rs.50,000/-, in default to undergo simple imprisonment for a period of one month. I find no ground to reduce the sentence Crl..R.P NO.898 OF 2005 5 further. Therefore this revision petition is accordingly dismissed confirming the conviction and sentence of the accused by the trial court which is modified by the lower appellate court. The accused shall surrender before the trial court on or before 28/2/2011 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE mns