IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 Crl.Rev.Pet.No. 373 of 2002(B) ------------------------------------------ CRL.A.NO.253/2000 OF ADDL. SESSIONS COURT (ADHOC), THRISSUR, ST.NO.4249/1996 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- ASOKAN, S/O.NARAYANAN, VADASSERY HOUSE, MANALUR, THRISSUR DIST. BY ADV. MR.M.K.DILEEP KUMAR. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ 1. SHAJI M., S/O.SANKUNNY NAIR, MADATHIL HOUSE,ALAGAPPA NAGAR(P.O), THRISSUR DIST. 2. STATE OF KERALA,REP.BY DIRECTOR GENERAL OF PROSECUTION,HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADVS. MR.BABU CHERUKARA, MR.BABY P. ANTONY, R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 373/2002-B: ORDER ON CRL.M.P. NO. 2641/2002 IN CRL.R.P. NO. 373/2002-B DISMISSED 11/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 373 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 11th day of November,2009 O R D E R Revision petitioner is the accused in S.T.No.4249 of 1996 of the Judicial Magistrate of the First Class, Irinjalakuda and the appellant in Crl.A.No.253 of 2000 of the Addl. Sessions (Adhoc) Fast Track Court No.I, Thrissur. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one month and to pay a compensation of Rs.10,000/-, in default to undergo simple imprisonment for one month, which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, was that to discharge the liability of Rs. 10,000/- towards the complainant, the accused issued cheque Ext.P1 dated February 1, 1996, drawn on the Bank of Baroda, Thrissur Branch which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank, that in spite of notice Ext.P4 dated May 7, 1996, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. Crl.R.P.373/02 2 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant 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 and 2 were examined and Exts.P1 to P7 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 having committed any offence. DWs.1 and 2 were examined and Exts.D1 to D7 were marked on his side. The trial court, on an appreciation of the evidence, found the 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 lower appellate court confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 4. Heard the learned counsel for revision petitioner and the learned counsel for first respondent. 5. 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? Crl.R.P.373/02 3 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 6. 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 P7 and PW2, the Branch Manager. Their evidence is also supported by Exts.P1 to P7. Therefore, I am of the view that both the courts below were right in believing the evidence of PWs.1 and 2 and holding that cheque Ext.P1 was issued by the revision petitioner to discharge his liability towards the complainant, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank. 7. The case of the revision petitioner, when questioned under section 313 Cr.P.C. by the learned Magistrate and as testified by him as DW1, was that PW1 was conducting a share exchanging club in the name and style of M/s. Capital Investments along with three other partners, that accused was a member of the same, that as security he has issued 15 cheques and that Ext.P1 is one of those cheques. Ext.D1 is the copy of reply notice sent by him. Exts.D2 and D3 are the copies of complaints filed against him in other cases. DW2 is the Manager of Bank of Baroda, Thrissur Crl.R.P.373/02 4 Branch who proved Ext.D6 a cheque issued by PW1 to the accused. Both the courts below have found that the evidence let in by the accused is not sufficient to prove that PW1 had any share business or to show that Ext.P1 cheque was issued as security. I find no reason to come to a different conclusion. That apart as DW1 has admitted the issuance of cheque Ext.P1, presumption under sections 118 and 139 of the Negotiable Instruments Act is available for the complainant. Accused has failed to rebut the above presumption effectively. For all these reasons, I am inclined to confirm the findings of both the courts below that accused has issued cheque Ext.P1 to discharge his liability towards the complainant 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.P4 the accused did not repay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act. 8. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for one month and compensation of Rs.10,000/-, in default to undergo simple imprisonment for one month, which was confirmed in appeal. The transaction is of the year 1996. Further, the Crl.R.P.373/02 5 amount involved is only Rs.10,000/-. Under these circumstances, I feel that a fine of Rs.10,000/-, in default to undergo simple imprisonment for three months alone would meet the ends of justice 9. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which was confirmed in appeal, is upheld. The sentence of imprisonment imposed on the revision petitioner is set aside. Sentence of fine imposed by the trial court which was confirmed in appeal is maintained. 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 month's time is granted for payment of fine. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P.373/02 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 373 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 11-11-2009