IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1292 of 2003() ------------------------------ CRA.882/2001 of ADDL.SESSIONS COURT, N. PARAVUR CC.288/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOJO PAUL.K., S/O.K.D.POULOSE, KALAPARAMBATH HOUSE, ALANGAD P.O., PARAVUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBA RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------- 1. M.V.PETER, NARAKACHALIL (H), THOTTAKKATTUKARA, ALUVA, ERNAKULAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.S.MANU FOR R1 SRI.ANOOP JOSEPH FOR R1 R2 BY PUBLIC PROSECUTOR SRI AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.1292 of 2003 ------------------------------------------------------ Dated: DECEMBER 17, 2009 ORDER The challenge in this revision by the accused is to the judgment of Judicial First Class Magistrate Court-I, Aluva in C.C. 288/1999 dated December 7, 2001 convicting the accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months which is confirmed in appeal by the Additional Sessions Court, N. paravur in Crl.A.882/2001 by judgment dated April 11, 2003. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint is that towards Rs.27,000/- due to the complainant, the accused issued the cheque Ext.P1 dated October 15, 1998 drawn on the Lord Krishna Bank Ltd., Aluva Branch which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P4, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the learned magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court Crl.R.P.1292/2003 2 pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused submitted that he borrowed Rs.10,000/- from the complainant and as security he issued the cheque Ext.P1. No defence evidence was adduced. 4. The learned magistrate on an appreciation of evidence found the revision petitioner/accused guilty of the offence punishable under sec.138 of the 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 revision 1st respondent/complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. PW.1 was examined and Exts.P1 to P7 were marked on the Crl.R.P.1292/2003 3 side of the complainant to prove the guilt of the accused. PW.1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P7. 8. The case of the revision petitioner when questioned under sec.313 Cr.P.C. by the trial court was that he borrowed Rs.10,000/- from the complainant for which he issued a signed blank cheque and misusing that cheque the complainant has created Ext.P1. No evidence was adduced by the accused to prove his case. Further, the accused has admitted the issuance of the cheque Ext.P1. Therefore presumptions under secs.118 and 139 of the Negotiable Instruments Act is available for the complainant. The accused did not adduce any evidence to rebut the above presumption. 8. For all these reasons I am inclined to hold that both the courts below are justified in accepting the evidence of PW.1 and finding that the accused is guilty of the offence punishable under sec.138 of the Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act. Point No.II 9. As regards the sentence, the trial court imposed a sentence Crl.R.P.1292/2003 4 of simple imprisonment for three months, which is confirmed in appeal. The transaction is of the year 1998. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs.30,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect hat he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.30,000/-, in default to undergo simple imprisonment for two months. The entire fine amount, if realised, shall be paid as compensation to the complainant/PW.1 as provided under sec.357(1) of Cr.P.C. His bail bonds are cancelled. Counsel for the revision petitioner submits that the revision petitioner has already deposited Rs.27,000/- before the trial court towards the fine amount. This amount shall be adjusted towards the fine imposed. Two months time is granted for payment of the balance amount. The accused/revision petitioner shall surrender before the trial court on or before 30.1.2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.5405 of 2003 Crl.R.P.1292/2003 5 Dismissed. 17.12.2009 P.Q. BARKATH ALI, JUDGE mt/-