IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 Crl.Rev.Pet.No. 3245 of 2003(B) ------------------------------- CRA.337/2003 of ADDL.SESSIONS COURT (SPL.), KOTTAYAM CC.430/2002 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- P.V.MAMMU HAJI, AGED 73 YEARS, S/0 ABDU, BUSINESS, MUBARAK HOUSE, KOROTHA ROAD, AZHIYOOR. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE:- --------------- 1) T.R.CHANDRAN, S/O. RAKHAVAN PILLAI, GEETHA MADAM, PLAZANAL POST. (DIED) 2) STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA. ADDL. 3) AJI VALSAMMA, AGED 58 YEARS, WIDOW OF T.K.CHANDRAN, GEETHA MAOAM, PLAZANAL, KOTTAYAM. 4) ANUPAMA CHANDRASEKHARAN, AGED 35 YEARS, DAUGHTER OF CHANDRASEKHARAN, GEETHA MADOM, PLAZANAL, KOTTAYAM. ADDL. RESPONDENTS 3 AND 4 ARE IMPLEADED AS PER ORDER DATED 30-9-2011 IN CRL.M.APPLN. NO.1534/2008. PUBLIC PROSECUTOR SHRI JAIBY PAUL FOR R2 SRI.BABY THOMAS FOR R3 & R4 SRI.GIGIMON ISSAC FOR R3 & R4 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX ANNEXURE 1: THE COPY OF DISCHARGE SUMMARY REPORT ISSUED FROM THE NATIONAL HOSPITAL, CALICUT. ANNEXURE 2: THE PHOTO COPY OF LETTER OF CROMPROMISE DATED 11-4-2001. P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 3245 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 30th day of September, 2011 O R D E R Revision petitioner is the accused in C.C.No.430/2002 on the file of the Judicial Magistrate of the First Class, Erattupetta and the appellant in Crl.A.No.337/2003 on the file of the Addl. Sessions Court (Spl), Kottayam. The trial court by judgment dated June 23, 2003 convicted him under section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months and to pay compensation of `1,50,000/-. On appeal by the accused, the lower appellate court by judgment dated October 14, 2003 confirmed his conviction and sentence imposed. The accused has 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, in brief is this:- The accused borrowed `1,50,000/- from the complainant and to discharge that liability, the accused CRRP 3245/2003 2 issued cheque Ext.P1 dated June 5, 2000 drawn on the Vijaya Bank, Olavakode Branch 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 dated July 4, 2000, the accused did not re-pay the amount. Therefore, the claimant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. The trial court on receipt of the complaint recorded 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. The complainant was examined as PW1 and Exts.P1 to P7 were marked on his side. The accused, on questioning under section 313 Cr.P.C. by the learned Magistrate, denied all the allegations in the complaint. He got himself examined as DW1 and Exts.D1 to D1 (b) were marked on his side. 4. The trial court, on an appreciation of the evidence, CRRP 3245/2003 3 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. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/complainant. 6. As the first respondent died, his legal heirs were impleaded as Addl. respondents 3 and 4. 7. The following points arise for consideration in this revision:- 1) Whether the conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed on the revision petitioner/accused is excessive or unduly harsh ? 8. Point No.1:- The complainant as PW1 testified in CRRP 3245/2003 4 terms of the complaint before the trial court. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P.6 8. The learned counsel for the revision petitioner argued that non-identification of the photograph of accused in Ext.D1 photo album by PW1 cast serious doubt regarding the transaction alleged by the complainant. I am unable to agree. It is true that PW1 wrongly identified Ext.D1(a) as the photograph of the accused. That itself is not a ground to disbelieve PW1. The accused has failed to explain how the complainant came into possession of Ext.P1 cheque. Therefore, in my view the Trial court is perfectly justified in believing the evidence of PW1 regarding the transaction. 9. The case of the accused as testified by him as DW1 before the trial court was that he does not know the complainant and that he has not issued cheque CRRP 3245/2003 5 Ext.P1 to the complainant. There is no merit in the above contention. He did not adduce any evidence, except examining himself as DW1 to prove his case. That apart, the accused has admitted his signature in Ext.P1. That being so, presumption as envisaged under section 138 of the Negotiable Instruments Act is available to the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. That being so, the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW1 and rejecting the evidence of DW1 and holding that for the amount due to the complainant, the accused issued Ext.P1 cheque dated June 5, 2000 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 CRRP 3245/2003 6 Negotiable Instruments Act rendered by the trial court which was upheld by the lower appellate court. 10. Point 2:- As regards the sentence, the trial court has imposed a sentence of simple imprisonment for three months and to pay compensation of `1,50,000/-. The lower appellate court confirmed the conviction and sentence. The transaction is of the year 2000 and the amount involved is `1,50,000/, I feel that sentence of imprisonment till the rising of court and to pay compensation of `1,50,000/- with default sentence would meet the ends of justice 11. 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 was confirmed in appeal by the lower appellate court is upheld. The sentence imposed on the revision petitioner is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay compensation of `1,50,000/- to the complainant, in default to undergo simple imprisonment for CRRP 3245/2003 7 one month. Amount, if any, deposited by the revision petitioner/accused before the trial court shall be adjusted towards the compensation ordered to be paid. His bail bonds are cancelled. Two months’ time is granted for payment of the compensation. The revision petitioner shall surrender before the trial court on or before 30-10-2011 to suffer the sentence. Sd/- P.Q.BARKATH ALI, JUDGE. /true copy/ P.S. to Judge. CRRP 3245/2003 8 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 3245 OF 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R 30-9-2011