IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 2696 of 2003(C) ------------------------------- CRA.105/2001 of SESSIONS COURT, KASARAGOD CC.124/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.V.KANNAN MASTER, S/O. UUDA, RAM NAGAR HIGH SCHOOL, P.O.ANANDASHRAM, HOSDURG TALUK. BY ADV. SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. A.MUTHU S/O. AMBADI, RESIDING AT RAVENEESHWAR, RAVENEESHWAR.P.O., HOSDURG TALUK. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.M.SANTHOSH KUMAR FOR R1 SRI.A.MOHAMMED MUSTQUE PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2696 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.124/1999 of Judicial First Magistrate Court -I, Hosdurg and appellant in Crl.Appeal No.105/2001 of Sessions Court, Kasargod. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced undergo rigorous imprisonment for six months by the trial court. His conviction was confirmed by the lower appellate court, but the sentence was modified to compensation of Rs. 64,000/-, in default to undergo simple imprisonment for three months. 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. 64,000/- from the complainant and to discharge that liability the accused issued the cheque Exts.P1 dated 24-11-1998 which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the Crl.R.P.No.2696/2003 Page numbers accused in the bank and that in spite of notice Ext.P3 dated 1-1-1999 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. PW 1 was examined and Exts.P1 to P4 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. He would say that Ext.P1 was issued as a security for advancing the kuri amount. No defence evidence was adduced. 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. Crl.R.P.No.2696/2003 Page numbers 5. Heard the counsel for the revision petitioner and the 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 was examined as PW1 and he produced Exts.P1 to P4 before the trial court to prove his case. I have gone through his evidence. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P4. 8. The case of the accused was that Ext.P1 cheque was issued as a security for advancing a kuri amount and that the same is without consideration. No evidence is adduced by the accused to prove his case. That part, as the accused has admitted the execution of Ext.P1 Crl.R.P.No.2696/2003 Page numbers cheque, presumption under Section 118 and 139 of Negotiable Instruments Act is 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. Point No.2 9. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for six months which is modified in appeal to compensation of Rs. 64,000/- with default sentence. I find no reason to reduce the sentence. Therefore, confirming the conviction and sentence of the revision petitioner , the revision petition is dismissed. Two month's time is granted for payment of compensation. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2696/2003 Page numbers Crl.R.P.No.2696/2003 Page numbers Crl.R.P.No.2696/2003 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2696/2003 Page numbers P.Q.BARKATH ALI JUDGE Crl.R.P.No.2696/2003 Page numbers sv.