IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 Crl.Rev.Pet.No. 3006 of 2003(B) ------------------------------- CRA.58/2002 of I ADDL.SESSIONS COURT, ERNAKULAM CC.798/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------- XAVIER GEORGE, VALIYAPARAMBIL HOUSE CC.D.NO.23/258, KANNANGATT ROAD NORTH EDAKOCHI, KOCHI - 6 BY ADV. SRI.P.T.JOSE RESPONDENTS/RESPONDENTS/COMPLAINANT --------------- 1. MR.AVIGIN, PROPRIETOR NISHA TRADERS, NEAR ACQUINAS COLLEGE, EDAKOCHI, KOCHI - 6 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ADV. SRI.TOM JOSE FOR R1 SMT.GEETHA JOB(OZHUKAYIL) FOR R1 PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.12171/2003 IN CRL.R.P.NO.3006 OF 2003 DISMISSED 11-07-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3006 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of July, 2011 ORDER Revision petitioner is the accused in C.C.No.798/1999 on the file of Judicial First Class Magistrate Court II, Kochi and appellant in Crl.Appeal No.58/2002 of Sessions Court, Ernakulam. The learned Magistrate by judgment dated December 18, 2001 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months. He was also directed to pay a compensation of Rs.32,000/- to the complainant. On appeal by the accused, the learned Sessions Judge by judgment dated June 12, 2003 confirmed his conviction, but reduced the sentence to simple imprisonment for one month. The direction to pay compensation was sustained. 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.3006/03 2 that the accused purchased 200 bags of cement at the rate of Rs.148/- from the complainant and towards the value of the cement, he issued the cheque Ext.P1 dated September 6, 1999 drawn on the Ernakulam branch of Bank of Rajasthan which when presented for collection 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 September 18, 1999, 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 P11 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. DW1 was examined on his side. 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 Crl.R.P.No.3006/03 3 and sentenced him as aforesaid. On appeal by the accused, the 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 P11. 8. The accused as DW1 testified that he used to hire taxi from the complainant and Rs.5,000/- was due from him as taxi charges and as a security for that amount, he issued a signed blank cheque to the Crl.R.P.No.3006/03 4 complainant which was misused by him and created Ext.P1. Except the interested version of DW1, there is no evidence to prove the above contention. That apart, 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 the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 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 three months. The accused was also directed to pay a compensation of Rs.32,000/- to the complainant. On appeal by the accused, the learned Sessions Judge reduced the sentence to simple imprisonment for one month. The direction to pay Crl.R.P.No.3006/03 5 compensation was sustained. Taking into consideration the fact that the transaction is of the year 1999, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.32,000/- with default sentence 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 revision petitioner/accused is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 32,000/- to the complainant, in default to undergo simple imprisonment for two months. Three months' time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before July 27, 2011 to receive the sentence. His bail bonds are cancelled. The revision petitioner is permitted to pay the compensation direct to complainant and produce receipt before the trial court. P.Q.BARKATH ALI JUDGE sv Crl.R.P.No.3006/03 6