IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 669 of 2004(C) ------------------------------ CRA.58/2000 of ADDL.SESSIONS COURT-I, MAVELIKKARA CC.95/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.M.VISWAMBHARAN, SON OF MADHAVAN PILLAI, KOITHARAYIL LEKSHMI BHAVAN, ALA, CHENGANNUR. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. M/S.DOMESTIC LIKES, VENMONY, REPRESENTED BY ITS PROPRIETOR. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.HARIKRISHNAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 669 of 2004 ------------------------------------------------------ Dated: SEPTEMBER 28, 2010 ORDER This revision is by the accused in C.C.No.95/1997 on the file of the JFCM Court-I, Chengannur. He challenges his conviction under sec.138 of the Negotiable Instruments Act and sentence to undergo simple imprisonment for three months and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for one month by the learned Magistrate which is confirmed in appeal. It was also directed by the learned Magistrate that out of the fine amount, Rs.4000/- should be given to the complainant as compensation. 2. The revision 1st respondent/complainant is a private firm doing business in household articles at Venmony. The case of the complainant firm as testified by PW.1, who is its proprietor, and as stated in the complaint is that the accused purchased a colour TV and its accessories from him on credit basis for Rs.17,250/- and to discharge that liability issued the cheque Ext.P1 dated December 3, 1996 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 the notice Ext.P4 dated January 25, 1997, the accused did not repay the amount, which is an offence punishable CRL. R.P. 669 of 2004 2 under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the PW.1, proprietor of the 1st respondent firm, and took cognizance of the offence. On appearance before the Magistrate, the accused pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction and contended that he has issued the cheque for the TV and its accessories purchased by one Saji on agreement that when Saji pays the amount, the complainant would return the cheque. On the side of the accused, besides himself as DW.2, his wife was examined as DW.1. 4. On an appreciation of evidence the learned Magistrate found that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused the lower appellate court confirmed his conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the revision 1st respondent/complainant. CRL. R.P. 669 of 2004 3 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner by the trial court under sec.138 of the Negotiable Instruments Act, which is confirmed in appeal, can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? POINT NO.I 7. The revision 1st respondent/complainant as PW.1, testified in terms of the complaint before the trial court. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by PW.2, the Bank Manager, and Exts.P1 to P9. 8. The case of the revision petitioner/accused as testified by him as DW.2 and as suggested during the cross-examination of PW.1 was that he followed one Mr. Saji to the shop of PW.1/complainant and purchased a TV and stabiliser, that after the said purchase Saji absconded and that thereafter PW.1 came to his house and compelled him to issue the cheque Ext.P1. The accused in an attempt to prove his case examined his wife as DW1 besides himself as DW.2. The trial court as well as the lower appellate court has chosen to disbelieve their evidence for obvious reasons. I have gone through their evidence. I see no reason to come to a different conclusion. CRL. R.P. 669 of 2004 4 Therefore, in my view, both the courts below are justified in rejecting the evidence of DW1 and DW2 and accepting the evidence of PW1 and coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. That being so, the conviction of the revision petitioner/accused under Sec.138 of the Negotiable Instruments Act has to be confirmed. POINT No.II 9. As regards the sentence, the learned Magistrate imposed simple imprisonment for three months and a fine of Rs.5000/- in default to undergo simple imprisonment for one month, which is confirmed in appeal. There was also a direction to pay Rs.4000/- out of the fine amount to the complainant as compensation. As the transaction is of the year 1996 and that the amount involved is only Rs.17,250/-, I feel that a fine of Rs.20,000/- and imprisonment till the rising of court would meet the ends of justice. 10. In the result, the conviction of the revision petitioner/accused under Sec.138 of the Negotiable Instruments Act rendered by the learned Magistrate which is confirmed in appeal, is upheld. 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.20,000/-, in default to undergo simple imprisonment for three CRL. R.P. 669 of 2004 5 months. The fine amount, if realised, shall be paid to the revision 1st respondent/complainant as compensation as provided under Sec.357 (1) Cr.P.C. Two months time is granted for payment of fine. His bail bonds are cancelled. The accused shall surrender before the trial court on or before October 20, 2010 to suffer the sentence. His bail bonds are cancelled. The Crl.R.P. is disposed of as found above. P.Q. BARKATH ALI, JUDGE mt/-