IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 347 of 2002() ----------------------------- CRA.104/1999 of II ADDL. SESSIONS COURT, PALAKKAD CC.73/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.A.BALAKRISHNAN, S/O.APPU, KUNNATH HOUSE, KONGAD POST, PALAKKAD DISTRICT. BY ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. SREENIVASAN P.S., YESODA, KONGAD, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.T.P.VARGHESE FOR R1 SRI.N.SASI FOR R1 PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.347 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.73/1997 of Judicial First Magistrate II, Palakkad and appellant in Crl.Appeal No.104/1999 of Sessions Court, Palakkad. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced undergo simple imprisonment for three months and to pay a fine of Rs. 80,000/-, in default to undergo simple imprisonment for two months by the trial court. Fine amount, if realised, Rs. 75,000/- was ordered to be paid to PW1 as compensation. On appeal by the accused, the substantive sentence was reduced to simple imprisonment for two months and the direction to pay compensation was maintained. The accused has now come up in 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. 75,000/- from the complainant and to discharge that liability the accused issued the cheque Exts.P1 dated Crl.R.P.No.347/02 Page numbers September 11, 1996 drawn on the Kongad branch of Dhanalakshmi 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 notice Ext.P6, 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. PWs 1 and 2 were examined and Exts.P1 to P11 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused submitted that he borrowed only Rs. 40,000/- from the complainant on several occasions and at that time he has issued two blank signed cheques and two signed blank stamp papers to the complainant and that misusing one of those cheques, the complainant has created Ext.P1. On the side of the accused DW1 was examined and Ext.D1 was marked. Crl.R.P.No.347/02 Page numbers 4. The trial court 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 his conviction was confirmed, but sentence was modified as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and revision first respondent. 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 terms of the complaint before the trial court. No serious discrepancies or inconsistencies were Crl.R.P.No.347/02 Page numbers brought out during his cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P11. 8. The case of the accused was that he borrowed Rs. 40,000/- from the complainant on several occasions and at that time he gave some signed blank cheques and it was misused by the complainant and created Ext.P1. DW1 was examined to prove his case. But the trial court as well as the lower appellate court has disbelieved the evidence of DW1 . I find no reason to come to a different conclusion. That part, as the accused has admitted the execution of Ext.P1 cheque, presumptions under Section 118 and 139 of Negotiable Instruments Act are available for the complainant. The accused has failed to rebut the above presumptions effectively. For all these reasons, I am inclined to confirm the findings of both the courts below that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Crl.R.P.No.347/02 Page numbers Point No.2 9. As regards the sentence, the trial court sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 80,000/-, in default to undergo simple imprisonment for two months. Fine amount, if realised, Rs. 75,000/- was ordered to be paid to PW1 as compensation. On appeal by the accused, the substantive sentence was reduced to simple imprisonment for two months and the direction to pay compensation was maintained. The transaction is of the year 1996. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 85,000/- would meet the ends of justice. In the result, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act by the trial court 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. 85,000/-, in default, to undergo simple imprisonment for six months. Fine amount, if realised, Rs. 80,000/- shall be paid to the complainant as compensation as provided under Crl.R.P.No.347/02 Page numbers Section 357(1) Cr.P.C. Two month's time is granted for payment of fine. Revision petitioner shall surrender before the trial court on or before 08-01-2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.347/02 Page numbers Crl.R.P.No.347/02 Page numbers P.Q.BARKATH ALI Crl.R.P.No.347/02 Page numbers JUDGE sv. Crl.R.P.No.347/02 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.347/02 Page numbers