IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.Rev.Pet.No. 3146 of 2004(C) ------------------------------- CRA.87/2003 of ADDL. SESSIONS COURT (ADHOC), KALPETTA CC.998/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- CYRIL JOSEPH, S/O. JOSEPH, UPPU VEETTIL HOUSE, PAYYAMPALLY, CHALLINGADHA, MANANTHAVADY. BY ADV. SMT.P.V.KOCHUTHRESIA SRI.V.P.RAGHURAJ RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. SALI ROY W/O. P.J.ROY, POOVANTHIKAL HOUSE, KATTIKULAM, MANANTHAVADY. 2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.A.SALIL NARAYANAN FOR R1 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.A.No.14331/2004 in Crl.R.P.No.3146/2004 DISMISSED 26-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3146 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of October, 2010 ORDER Revision petitioner is the accused in C.C.No.998/2000 of Judicial First Class Magistrate Court II, Mananthavady and appellant in Crl.Appeal No.87/2003 of Additional Sessions Court (Adhoc), Kalpetta. The accused/revision petitioner was found guilty of the offence punishable under Section 138 of Negotiable Instruments Act and was convicted thereunder and was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.1,60,000/-, in default to undergo simple imprisonment for two months by the learned Magistrate by judgment dated March 4, 2003. On appeal by the accused, the lower appellate court by judgment dated September 10, 2004 confirmed his conviction, but modified the sentence to the effect that he was sentenced to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months and to pay a compensation of Rs. 1,60,000/-, in default to undergo simple imprisonment for two months. The accused has now come up in Crl.R.P.No.3146/2004 2 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 that accused borrowed Rs.1,50,000/- from the complainant and to discharge that liability, he issued the cheque Ext.P4 dated 10/01/2000 drawn on the Panamaram branch of Canara Bank 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 the notice Ext.P6 dated 15/02/2000, 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. Complainant was examined as PW1 and Exts.P1 to P8 were marked on his side. When questioned under Section 313 of Cr.P.C., the accused denied the transaction. No defence evidence was Crl.R.P.No.3146/2004 3 adduced. 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 and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence as stated 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 Crl.R.P.No.3146/2004 4 evidence is supported by Exts.P1 to P8. 8. The specific case of the accused as suggested during cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that the cheque was issued as a security for the loan amount of Rs. 25,000/-. But no evidence was adduced by the accused to prove his case. Further, as the execution of the cheque Ext.P4 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 learned Magistrate imposed a Crl.R.P.No.3146/2004 5 sentence of simple imprisonment for three months and to pay a compensation of Rs. 1,60,000/-, in default to undergo simple imprisonment for a further period of two months. The lower appellate court modified the sentence to the effect that he is sentenced to pay a fine of Rs.5,000/-in default to undergo simple imprisonment for three months and to pay a compensation of Rs. 1,60,000/-, in default to undergo simple imprisonment for two months. Taking into consideration the fact that the transaction is of the year 2000, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.1,60,000/- 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 sentence is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 1,60,000/-, in default to undergo simple imprisonment for two months. Two month's time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before 30/11/2010 to receive the Crl.R.P.No.3146/2004 6 sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3146/2004 7 Crl.R.P.No.3146/2004 8