IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 Crl.Rev.Pet.No. 3362 of 2004(A) ------------------------------- CRA.682/2002 of ADDL.SESSIONS COURT, PARAVUR ST.963/1999 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- O.P.THOMAS, S/O.PYLEE, OLATTUPURATH HOUSE, KOVILAKATHUM KADAVU, PALLIPURAM. BY ADV. SRI.MURALI PURUSHOTHAMAN SRI.P.M.BENZIR SRI.DEEPU LAL MOHAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. AZHEEKKAL SREE VARAHA DEVASWOM, CHERAI, PALLIPPURAM VILLAGE, REP. BY ITS PRESIDENT JAYA CHANDRA PRABHU, S/O.GUNA PRABHU, DEVASWOM PARAMBIL, AZHEEKKAL DESOM, PUTHUVAIPU VILLAGE. ADV. SRI.S.B.PREMACHANDRA PRABHU FOR R2 SRI.G.SREENIVASA PRABHU FOR R2 PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.A.No.15351/2004 in Crl.R.P.No.3362/2004 Dismissed. 01-11-2010 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3362 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of November, 2010 ORDER Challenge in this revision is to the judgment of Judicial First Class Magistrate Court, North Paravur in S.T.Case No. 963/1999 dated September 10, 2002 convicting the accused under Section 138 of Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months and to pay a compensation of Rs. 50,000/- , in default, to undergo simple imprisonment for three months which is confirmed in appeal by the Additional Sessions Court, North Paravur in Crl.Appeal No.682/2002 by judgment dated September 29, 2004. The accused has now come up in revision challenging his conviction and sentence. 2. Revision first respondent/complainant is Azheekkal Sree Varaha Devaswom, Cherai represented by its President. The case of the complainant as testified by PW1, its present President and as detailed in the complaint in brief is this : The complainant had leased the right to take prawns from its land Crl.R.P.No.3362/2004 2 to the accused for the period from November 1, 1995 to April 25, 1996 for a consideration of Rs. 15,26,222/-. The balance amount due from the accused as on June 26, 1996 was Rs. 4,56,320/-. To discharge that liability, the accused issued the cheque Ext.P2 dated June 26, 1996 . The cheque when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of the notice Ext.P6 dated August 10, 1998, the accused did not repay the amount. Therefore, the complainant Devaswom through its President filed the complaint before the trial court under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the then President of the complainant Devaswom 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 P15 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the liability. He got himself examined as DW1 on his side and produced Crl.R.P.No.3362/2004 3 Exts.D1 and D2. 4. The learned Magistrate on an appreciation of evidence found the accused 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/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. The present President of the complainant Devaswom testified as PW1 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 P15. 8. The case of the accused as testified by him as DW1 was Crl.R.P.No.3362/2004 4 that the amount mentioned in Ext.P2 cheque represents the interest which he is not liable to pay and that therefore no amount is due from him to the complainant. Except the interested version of DW1, there is no other evidence to prove his case. Further the accused has acknowledged his liability in Ext.P14 agreement. That apart, as the accused admitted the execution of Ext.P2, 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 and to pay a compensation of Crl.R.P.No.3362/2004 5 Rs. 50,000/-, in default to undergo simple imprisonment for a further period of three months which is confirmed in appeal. 11. Counsel for the revision petitioner/accused submitted that the civil case between the complainant and the accused for the amount due under the cheque Ext.P2 was decreed and the accused has paid the entire amount in execution of that decree. Counsel for the revision petitioner produced copy of the receipt for having paid that amount. Therefore, a lenient view is taken. The sentence of the accused is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for one week. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of 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. 1,000/-, in default to undergo simple imprisonment for one week. The revision petitioner shall surrender before the trial court on or before 30/11/2010 to suffer the sentence. Time granted till that date Crl.R.P.No.3362/2004 6 for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3362/2004 7