IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 Crl.Rev.Pet.No. 2214 of 2004(B) ------------------------------- CRA.528/2001 of ADDL.SESSIONS COURT, KOZHIKODE CC.1154/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... REVN. PETITIONER(S): REVISION PETITIONER/ACCUSED/APPELLENT. ----------------------------------------------------------- P.MURALEEDHARAN, S/O.RAIRU VAIDYAR, PARAMBATH, VATAKARA AMSOM & DESOM, P.O. NUTSTREET, VATAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SRI.ANOOP U.R. SMT.THUSHARA.V RESPONDENT(S): COMPLAINANT & STATE. ----------------------------------- 1. P.SANEESHKUMAR, S/O.BAHASKARAN, PRIYA, KUNNATHARA AMSOM, KANNUR DESOM, QUILANDY, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA SRI.B.V.JOY SANKER FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Cr.R.P.No.2214 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June, 2010 ORDER Challenge in this revision petition is to the judgment of the Judicial First Class Magistrate, Koyilandy in C.C.No.1154/1998 dated September 19, 2001 convicting the revision petitioner/accused under Section 138 of Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for three months which is confirmed in appeal by the First Additional Sessions Court, Kozhikode in Crl.Appeal No.528/2001 by judgment dated June 26, 2004. 2. The case of the revision first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that on January 15, 1998 accused borrowed Rs. 1,50,000/- from the complainant and to discharge that liability, he issued the cheque Ext.P1 dated July 17, 1998 which when presented for collection was returned dishonoured for want of sufficiency of funds in CRRP.No.2214/04 2 the account of the accused in the bank and that in spite of notice Ext.P3 dated August 24, 1998, 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. 4. Complainant was examined as PW1 and the Manager of the bank was examined as PW2 and Exts.P1 to P4 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the transaction. No defence evidence was adduced. 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 has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the CRRP.No.2214/04 3 counsel for the first revision 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. PW 1, the complainant testified in terms of the complaint before the trial court. No serious discrepancies or inconsistencies were brought out during his cross examination to discredit his evidence. That apart, his evidence is supported by Exts.P1 to P4. 8. The specific case of the accused was that Ext.P1 cheque was issued by him as a security in connection with a vehicle transaction between the complainant and himself. No evidence was adduced on the side of the accused to prove the same. Even to the notice Ext.P3, no reply was sent by the accused. Therefore both the courts below is justified in rejecting the above case of the accused. CRRP.No.2214/04 4 Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to him. 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 appellate court is 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 and convicted him thereunder. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for three months and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for a further period of three months which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1998, I feel that a substantive sentence of imprisonment till the rising of court and a compensation of Rs.1,50,000/-, in default, to undergo simple imprisonment for one month would meet the ends of justice. In the result, revision petition is allowed in part. The conviction CRRP.No.2214/04 5 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 Appellate Court is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 1,50,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for one month. It is seen from the records that at the time of suspending the sentence, the revision petitioner was directed to deposit the entire cheque amount before the trial court. If the amount is already deposited by the accused before the trial court, the complainant is permitted to withdraw the same. If not deposited, three months time is granted to the revision petitioner to deposit that amount before the trial court. The revision petitioner shall surrender before the trial court on or before July 30, 2010 to receive the sentence. P.Q.BARKATH ALI JUDGE sv. CRRP.No.2214/04 6 CRRP.No.2214/04 7