IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Crl.Rev.Pet.No. 596 of 2001() ----------------------------- CRL.A.NO.443/1998 OF II ADDL.SESSIONS COURT, ERNAKULAM, ST.NO.393/1997 OF JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- CHANDRAMATHI, W/O. SURENDRAN, KOOTTUPURACKAL HOUSE, KOVILAKATHU VEEDU, PALLIPPURAM. BY ADV. MR.T.RAJESH. RESPONDENTS/ RESPONDENTS/ COMPLAINANT: ----------------------------------------------------------------------- 1. TILAKAN, S/O. KESAVAN, MURIYAKKATTU, ELAMKUNNAPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R1 BY ADV. MR.S.RAJEEV, R2 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2009, ALONG WITH CRL.R.P. NO. 608/2001, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 596/2001: ORDER ON CRL.M.P. NO. 2903/2001 IN CRL.R.P.NO.596/2001 DISMISSED 22/10/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 596 & 608 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 22nd day of October, 2009 O R D E R Revision petitioner in Crl.R.P.No.596 of 2001 is the accused in S.T.No.393 of 1997 of the Judicial Magistrate of the First Class-I, Kochi and appellant in Crl.A.No.443 of 1993 of the Addl. Sessions Court, Ernakulam. Revision petitioner in Crl.R.P. No.608 of 2001 is the complainant in that case. Revision petitioner in Crl.R.P. No.596 of 2001 was convicted under section 138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.20,000/-, in default to undergo simple imprisonment for two months. Fine amount, if realized, was directed to be paid to the complainant PW1 as compensation. On appeal by the accused, the lower appellate court confirmed her conviction and modified the sentence to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of two months. The accused has filed Crl.R.P. No.596 of 2001 challenging her conviction and sentence. The complainant has filed Crl.R.P. Crl.RP 596/01 and con. 2 No.608 of 2001 challenging the judgment of the lower appellate court reducing the fine to Rs.5,000/-. 2. The case of the complainant as shaped in evidence before the trial court was that the accused borrowed Rs.20,000/- from him which when demanded, the accused issued the cheque Ext.P1 dated August 20, 1996, which when presented for collection was returned for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated October 31, 1996 the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the trial court recorded the sworn statement of the complainant and took cognizance of the case. The accused, on appearance before the trial court, pleaded not guilty to a charge under sec.138 of the Negotiable Instrument Act. PWs.1 to 3 were 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 denied the transaction. No evidence was adduced by her. The trial court on an appreciation of evidence found the accused guilty of the Crl.RP 596/01 and con. 3 offence punishable under sec.138 of the Negotiable Instruments Act, convicted her thereunder and sentenced her as aforesaid. The lower appellate court confirmed the said conviction but modified the sentence to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of two months. The accused has come up in revision challenging his conviction and sentence. The complainant has filed Crl.R.P. No.608 of 2001 challenging the judgment of the lower appellate court reducing the fine amount to Rs.5,000/-. 6. The following points arise for consideration: 1. Whether the conviction of the accused under section 138 of the Negotiable Instruments Act by the trial court, which was confirmed in appeal, can be sustained? 2. Whether the judgment of the lower appellate court reducing the fine amount to Rs.5,000/- is sustainable? 3) What is the proper sentence to be imposed on the revision petitioner? 7. On the side of the complainant PW1 was examined and Crl.RP 596/01 and con. 4 Exts.P1 to P7 were marked. PW1 is the complainant, PW2 is the Secretary of the bank and PW3 is the Branch Manager. I have gone through their evidence. Nothing was brought out in cross- examination to discredit their evidence. Further, the evidence of PW1 is supported by Exts.P1 to P7. That apart, the accused has admitted execution of the cheque. Therefore, presumption envisaged under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. Therefore, I am inclined to confirm the conviction of the accused by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal. 9. As regards the sentence, the trial court has imposed a fine of Rs.20,000/-, in default to undergo simple imprisonment for two months and directed to pay the same to PW1 as compensation. The lower appellate court reduced the fine amount to Rs.5,000/- on the ground that the maximum fine that the Magistrate can impose was Rs.5,000/-, which appears to be not correct. Therefore, I set aside the sentence imposed by the lower appellate court and restore the sentence imposed by the trial Crl.RP 596/01 and con. 5 court. The fine, if realized, shall be paid to PW1 as compensation as provided under section 357(1) Cr.P.C. In the result, Crl.R.P. No.596 of 200 is dismissed and Cr.R.P.No.608 of 2001 is allowed. The revision petitioner shall pay the fine amount before the trial court on or before 30-11- 2009. P.Q.BARKATH ALI, JUDGE. mn. Crl.RP 596/01 and con. 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 596 & 608 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R