IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.Rev.Pet.No. 34 of 2001() ---------------------------- CRA.23/1999 of V ADDL.SESSIONS COURT, ERNAKULAM CC.130/1994 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER(S): ACCUSED --------------------- P.ANTONY SILVESTER HOUSE NO.IX/207, VELI, COCHIN -1 BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI RESPONDENT(S): COMPLAINANT --------------- 1. LIGY PHILIP, W/O PHILIP NERI PROPRIETRIX, ALPHA ELECTRONICS TATA PIPE LINE ROAD, COCHIN 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ADV. SRI.V.V.SIDHARTHAN FOR R1 SRI.T.K.SHAJAHAN FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.34 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November , 2009 ORDER Revision petitioner is the accused in C.C.No.130/1994 of Judicial First Class Magistrate Court I, Ernakulam and appellant in Crl.Appeal No.23/1999 of Vth Additional Sessions Court, Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for four months and to pay a fine of Rs. 15,000/- , in default, to undergo simple imprisonment for 45 days by the trial court. Out of the fine amount, Rs. 14,000/- was ordered to be paid to PW1 as compensation. On appeal by the accused, his conviction under Section 138 of Negotiable Instruments Act was confirmed, but sentence was modified to the effect that accused was sentenced to undergo simple imprisonment for four months and to pay a compensation of Rs. 14,000/- to PW1. Now 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 Crl.R.P.No.34/2001 Page numbers brief is this : The first respondent/complainant was the manufacturer of emergency lamps under the name and style of Alpha Electronics. The accused was the laison agent for the same. On November 15, 1993, the accused issued the cheque in question -Ext.P1 for Rs. 12,000/- drawn on the South Indian Bank of Cochin towards the cost of 10 electronic emergency lamps and when the cheque was presented for collection , it was returned with the endorsement 'not arragned for'. Thus the cheque has been returned dishonoured due to insufficiency of funds in the account of the accused in the bank. To the notice Ext.P3, the accused sent a reply raising false contentions, but did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. When the learned Magistrate received the complaint, sworn statement of complainant/ PW1 was recorded and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PWs 1 and 2 were examined and Exts.P1 to P6 were marked on the Crl.R.P.No.34/2001 Page numbers side of the complainant. When questioned under Section 313 of Cr.P.C the accused denied the entire transaction. He would say that the cheque was issued as a security for taking goods from the complainant. Exts.D1 to D27 were marked on his side. 4. The trial court on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal, the conviction was confirmed, but sentence was modified as stated above. The accused has now come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act 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 6. PWs 1 and 2 were examined. Exts.P1 to P6 were marked Crl.R.P.No.34/2001 Page numbers on the side of the complainant before the trial court. PW2 is the Manager of the Bank. I have gone through the evidence of PWs 1 and 2. Nothing was brought out during their cross examination to discredit their evidence. Their evidence is supported by Exts.P1 to P6. 7. The specific case of the accused was that Ext.P1 cheque was issued as a security for purchasing goods. In an attempt to prove the above aspect, the accused produced Exts.D1 to D27 . Ext.D1 is the copy of the agreement executed between the accused and complainant for working as laison agent for the complainant. Ext.D2 is the covering letter by which Ext.P1 was issued. Ext.D3 is the copy of bill book and Exts.D4 to D27 are the bills of different dates included in the bill book. But in Ext.D2 covering letter, the accused has clearly stated that the cheque was issued towards the cost of the emergency lamps which were taken delivery by the complainant. Therefore the contention of the accused that Ext.P1 was issued only as a security cannot be accepted. For all these reasons, I am inclined to hold that the trial court as well as the lower appellate court is justified in accepting the evidence of PW1 and coming to the conclusion that accused has Crl.R.P.No.34/2001 Page numbers 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 8. As regards the sentence, the trial court sentenced the revision petitioner to undergo simple imprisonment for four months and to pay fine of Rs.15,000/-, in default to undergo simple imprisonment for 45 days. Out of the fine amount, Rs.14,000/- was ordered to be paid to PW1 as compensation. The lower appellate court confirmed his conviction, but modified the sentence to the effect that the revision petitioner was sentenced to undergo simple imprisonment for four months and to pay a sum of Rs.14,000/- as compensation to PW1. Taking into consideration the fact that the transaction is of the year 1993, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.15,000/-, in default to undergo simple imprisonment for three months, would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner by both the courts below under Crl.R.P.No.34/2001 Page numbers Section 138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.15,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, Rs.14,000/- shall be given to PW1 as compensation. One month's time is granted for payment of fine. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 30/11/2009. to receive the sentence. P.Q.BARKATH ALI JUDGE sv.