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. 163 of 2005(A) ------------------------------ CRA.409/2002 of ADDL.SESSIONS COURT, N.PARAVUR CC.894/1997 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- N.H.KASSIM S/O. PAREED HASSAN, NAYANAKKAMKUNNIL, ERATTUPETTA, MEENACHIL TALUK. BY ADV. SRI.V.K.MOHAMMED YOUSUF RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. M.P.DEVASSY, PROPRIETOR, MATHA RUBBERS SOUTH VAZHAKULAM, VAZHAKKULAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.V.VIJAYAKUMAR 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.2386/2005 in Crl.R.P.No.163/2005 DISMISSED 26-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.163 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of October, 2010 ORDER Revision petitioner is the accused in C.C.No.894/1997 of Judicial First Class Magistrate Court, Perumbavoor and appellant in Crl.Appeal No.409/2002 of Additional Sessions Court, North Paravur. 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 six months and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for three weeks by the learned Magistrate by judgment dated May 18, 2002 which is confirmed in appeal by the lower appellate court by judgment dated June 15, 2004. 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 towards the value of scrap rubber purchased, the accused issued the cheque Ext.P1 dated February 16, 1997 for Rs. 3,70,000/- which Crl.R.P.No.163/2005 2 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.P4 dated April 11, 1997, 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 PW 1 and Exts.P1 to P7 were marked on his side. When questioned under Section 313 of Cr.P.C. by the Magistrate, the accused denied the transaction. Accused got himself examined as DW1 on his side. 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 which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. Crl.R.P.No.163/2005 3 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 evidence is supported by Exts.P1 to P7. 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 Ext.P1 cheque was issued as a security, that no amount was due from him to the complainant and that there was material alteration in the cheque. No evidence was adduced by the accused except examining himself as DW1 to prove his case. Further the alteration in the cheque was countersigned by the accused. Crl.R.P.No.163/2005 4 Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque Ext.P1 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 trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for three weeks which is confirmed in appeal. As the accused is aged 65 and the transaction is of the year 1996, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.3,70,000/-, with default sentence Crl.R.P.No.163/2005 5 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 imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 3,70,000/- to the complainant, in default to undergo simple imprisonment for three months. Two months' 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 sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.163/2005 6