IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1710 of 2002() ------------------------------ CRA.547/2001 of IVTH ADDL.SESSIONS COURT, ERNAKULAM CC.2352/1998 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- V.K. MOHANAN, AGED 50 YEARS, RESIDING AT NIKITHITHARA HOUSE, PULAYA'S ROAD, NARAKKAL P.O. BY ADV. SRI.A.X.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT:' ---------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.M. ANTONY, CENTRAL POLICE STATION QUARTERS, BLOCK NO.VI, ROOM NO.10, E.R.G. ROAD, ERNAKULAM. P.P. SRI. K.S.SIVAKUMAR FOR R1 SRI. PRINCE VARGHESE FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl..M.P. No.9180/2002 in Crl.R.P. No. 1710/2002 Dismissed 30 -11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1710 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30th day of November, 2009 O R D E R Revision petitioner is the accused in C.C.No.2352 of 1998 of the Chief Judicial Magistrate, Ernakulam and the appellant in Crl.A.No.547 of 2001 on the file of the IVth Addl. Sessions Court, Ernakulam. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.85,000/-, in default to undergo simple imprisonment for further period of three months. Out of the fine amount, Rs.80,000/- was ordered to be paid to the complainant as compensation, as provided under section 357(1) Cr.P.C. On appeal, the lower appellate court confirmed his conviction and sentence of fine, but modified the substantive sentence of rigorous imprisonment of six months to simple imprisonment for three months. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as testified by the 2nd Crl.R.P.1710 2 respondent/complainant as PW1 before the trial court and as detailed in the complaint, was that the accused issued cheque Ext.P1 for Rs.80,000/- dated September 17, 1998, drawn on the Union Bank of India, Marine Driver 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.P5 dated September 21, 1998, the accused did not re- pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 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. PW1 was examined and Exts.P1 to P7(a) 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. He himself examined as DW1. 4. 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 conviction and sentence of fine were confirmed, but the substantive sentence was modified to simple Crl.R.P.1710 3 imprisonment for three months. The accused has come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the 2nd respondent. 6. 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? 7. Complainant himself was examined as PW1 and Exts.P1 to P7(a) were marked on the side of the complainant to prove the guilt of the accused. PW1 testified in terms of the complaint. I have gone through the evidence of PW1. No serious discrepancies or contradictions are pointed out to disbelieve his evidence. Further, his evidence is supported by Exts.P1 to P7(a). 8. The case of the accused as testified by him as DW1 was that his postal address shown in Ext.P3 notice is not correct and that therefore no statutory notice is issued to him. The further case of the accused was that he borrowed only Rs.70,000/-, that he issued cheque Ext.P1 and that the amount of Rs.70,000/- was repaid to the complainant. There is no substance Crl.R.P.1710 4 in the above contention. He has admitted in cross-examination that previously he was residing at Mulavukad. He has also admitted in cross- examination that his permanent place of residence is Mulavukad. In Ext.P7 postal receipt there was an endorsement to the effect that intimation was served on the accused. Therefore, the above contention of the accused cannot be accepted. As regards the contention of the accused that he borrowed only Rs.70,000/-, no evidence is adduced by him to prove the same. For all these reasons accepting the evidence of PW1, I am inclined to hold that both the courts below are justified in convicting the accused under section 138 of the Negotiable Instruments Act and I confirm the conviction. 9. As regards the sentence, the trial court has imposed a sentence of rigorous imprisonment for six months and directed to pay a fine of Rs.85,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount Rs.80,000/- was ordered to be paid to the complainant as compensation. On appeal, the substantive sentence reduced to simple imprisonment for three months and the sentence of fine was maintained. The transaction was of the year 1998. Taking into consideration all these aspects , I feel that sentence imprisonment till the rising of court and fine of Rs.80,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice Crl.R.P.1710 5 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under section 138 of the Negotiable 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.80,000/-, 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. mn. Crl.R.P.1710 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1710 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 30-11-2009