IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 Crl.Rev.Pet.No. 413 of 2002() ----------------------------- CRA.109/1996 of ADDL. SESSIONS COURT, FAST TRACK COURT-I, PALAKKAD ST.161/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- K.PRABHAKARAN, S/O. KANDAN, METTIL HOUSE, KALLEKKAD, NEAR CIVIL STATION, PALAKKAD. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENT/ -------------------------- 1. CHANDRIKA, W/O. LATE JAGADEESAN, KAPPIL HOUSE, MUNDUR, PALAKKAD. 2. SUBHALAKSHMI, D/O. LATE JAGADEESAN, KAPPIL HOUSE, MUNDUR, PALAKKAD. 3. JAYAKRISHNAN, S/O. LATE JAGADEESAN, KAPPIL HOUSE, MUNDUR, PALAKKAD. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.M.SUNIL FOR R1TO3 SMT.S.CHITHRA FOR R1TO3 PUBLIC PROSECUTOR SMT. REKHA C. NAIR FOR R4 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.P. No.2774/2002 in Crl.R.P. No. 413/2002 Dismissed 5-11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 413 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5th day of November, 2009 O R D E R Revision petitioner is the accused in S.T.No.161 of 1995 of the Judicial Magistrate of the First Class-II, Palakkad and the appellant in Crl.A.No.109 of 1996 of the Addl. Sessions Court, Fast Track Court-I, Palakkad. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay fine of Rs.1 lakh, in default to undergo simple imprisonment for one month. Out of the fine amount, Rs.70,000/- was ordered to be paid to the complainant as compensation. On appeal, his conviction and substantive sentence imposed was confirmed, but the fine was converted into compensation of Rs.70,000/- under section 357 Cr.P.C. Now the accused has come up in revision challenging his conviction and sentence. 2. The original complainant died during the pendency of the appeal and his legal heirs were impleaded as respondents 2 to 4 in the appeal. They CRRP 413/02 2 are also respondents 2 to 4 in this revision. 3. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, was that accused borrowed Rs.65,000/- from the complainant in August, 1994 and to discharge that liability he accused issued cheque Ext.P1 for Rs.70,000/- dated October 15, 1994, drawn on the Indian Bank, Palakkad branch, which when presented for collection was returned dishonoured 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 30, 1994, which was returned as “not claimed”, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 4. 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 the charge under section 138 of the Negotiable Instruments Act. PWs.1 to 3 were examined and Exts.P1 to P5 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. No defence evidence was adduced. 5. The trial court, on an appreciation of the evidence, found the CRRP 413/02 3 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 conviction was confirmed, but the sentence was modified as found above. The accused has come up in revision challenging his conviction and sentence. 6. Heard the counsel for revision petitioner and counsel for respondents. 7. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 8. PW1 the complainant testified in terms of the complaint before the trial court. I have gone through the evidence of PW1. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P5. The specific case of the revision petitioner is that one month prior to the alleged transaction, a theft has occurred in his office, and that some cheque leaves were also stolen and misusing those cheque leaves the complainant has created Ext.P1. There is no substance in the above contention. It is not reported to the bank about the CRRP 413/02 4 alleged theft of the cheque leaves. Further, no evidence is adduced by the accused to prove his case. Therefore, I am inclined to believe the evidence of PW1 regarding the transaction. For all these reasons, I feel that both the courts below are right in believing the evidence of PW1 and coming to the conclusion that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. That being so, the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act has to be confirmed. 9. Regarding the sentence, the trial court has imposed a sentence of simple imprisonment for three months and a fine of Rs.1 lakh, out of which Rs.70,000/- was ordered to be paid to the complainant. On appeal, the substantive sentence imposed on the revision petitioner was confirmed, but the appellate court instead of imposing fine, ordered to pay compensation of Rs.70,000/- to the complainant under section 357Cr.P.C., in default to undergo simple imprisonment for one month. The transaction is of the year 1994. Therefore, I feel that a sentence of imprisonment till the rising of court and fine of Rs.70,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable CRRP 413/02 5 Instruments Act, rendered by the trial court, which is confirmed in appeal, is upheld. The sentence imposed on the revision petitioner is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.70,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realized, shall be paid to PW1 as compensation as provided under section 357(1) of the Cr.P.C. His bail bonds are cancelled. Two months’ time is granted for payment of fine. The revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. P.Q.BARKATH ALI, JUDGE. The words “respondents 2 to 4” occurring in the second sentence of paragraph 2 are corrected and substituted as “respondents 1 to 3” and the words “paid to PW1” occurring in the 6th line of page 5 are corrected and substituted as “paid to legal heirs of PW1, respondents 1 to 3” as per order dated 6-12-2010 in Crl.M.A. No.11245/2010 in Crl.R.P. No.413/2002. Sd/- Registrar (Judicial) mn. CRRP 413/02 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 413 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 5-11-2009