IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 10TH MAY 2011 / 20TH VAISAKHA 1933 Crl.Rev.Pet.No. 2443 of 2005(A) -------------------------------------------- [CRL.A.NO.185/2001 OF ADDITIONAL SESSIONS COURT (ADHOC)-IV, THIRUVANANTHAPURAM, CC.NO.520/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-V, THIRUVANANTHAPURAM] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- SOMASEKHARAN.G. CHELLANTHIMOOTTIL, T.C 25/1413, THAMPANOOR, THIRUVANANTHAPURAM. BY ADV. SRI.SABU S.KALLARAMOOLA. RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. HILLARY PHILIP, T.C. 26/646(1), CHEMPAKA NAGAR, HOUSE NO. 51, OOTTUKUZHY, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.T.SHYAMKUMAR, R2 BY PUBLIC PROSECUTOR SRI. B. JAYASURYA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/05/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 2443 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 10th day of May, 2011 O R D E R Revision petitioner is the accused in C.C.No.520/1998 on the file of the Judicial Magistrate of the First Class-V (Special Court for Marklist Cases), Thiruvananthapuram and appellant in Crl.A.No. 185/2001 on the file of the Addl. Sessions Court, Fast Track (Adhoc) No.IV, Thiruvananthapuram. He was convicted under section 138 of the Negotiable Instruments Act by the learned Magistrate by judgment dated March 22, 2001 and was sentenced to undergo single imprisonment for five days and to pay cost of ` 500/-, in default to undergo simple imprisonment for one day. On appeal by the accused, the lower appellate court confirmed his conviction and sentence and dismissed the appeal by judgment dated August 3, 2005. The accused has come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant, as CRRP 2443/2005 2 testified by him as PW1 before the trial court and as detailed in the complaint, is that the accused borrowed Rs.10,000/- from him and to discharge that liability he issued cheque Ext.P1 dated April 30, 1997 drawn on the Thiruvananthapuram Branch of Union Bank of India, which when presented for encashment was dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 series, dated May 13, 1997, the accused did not re-pay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P3 series were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the CRRP 2443/2005 3 learned Magistrate, he denied the entire transaction. No defence evidence was adduced. 4. On an appreciation of the evidence, the learned Magistrate found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction and sentence and dismissed the appeal. The accused has come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/complainant. 6. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed by the trial court, which was confirmed in appeal by the appellate court, is excessive or unduly harsh? CRRP 2443/2005 4 7. The complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out in cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P3 series. 8. The case of the accused, as suggested during cross-examination of PW1 and as stated when questioned under section 313 Cr.P.C. by the learned Magistrate was that there was an agreement between PW1 and himself regarding construction of a shed and as a security he issued a signed blank cheque leaf to the complainant and that the complainant misused that cheque leaf and created Ext.P1. We find no substance in the above contention of the accused. No evidenced was adduced by the accused to prove his case. Further, as the issuance of a cheque was admitted by the accused, presumption as envisaged under sections 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. CRRP 2443/2005 5 That being so, in my view, the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW1 and finding the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act. The conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act is therefore confirmed. 9. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for five days and to pay a cost of ` 500/-, which was confirmed in appeal. Taking into consideration that the transaction is of the year 1997, a lenient view is taken and I feel that sentence imprisonment till the rising of court and a compensation of ` 10,000/- to the complainant PW1, in default to undergo simple imprisonment for one month would meet the ends of justice 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act is CRRP 2443/2005 6 confirmed. The sentence imposed on the revision petitioner by the trial court, which was confirmed in appeal by the lower appellate court, is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay compensation of ` 10,000/- to the complainant, in default to undergo simple imprisonment for one month. His bail bonds are cancelled. He shall surrender before the trial court on or before May 20, 2011 to suffer the sentence. Two month's time is granted for payment of the compensation. P.Q.BARKATH ALI, JUDGE. mn CRRP 2443/2005 7 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 2443 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R 10-5-2011