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. 1326 of 2003() ------------------------------ CRA.408/2000 of III ADDL. SESSIONS COURT (ADHOC), THRISSUR ST.6926/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT- I,CHALAKUDY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.V. PREMAN, S/O. VIDYADHARAN, KURIYAKKOTTU HOUSE, MUTHUVARA, PUZHAKKAL VILLAGE, THRISSUR. BY ADV. SRI.RAJIT RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. JOSE, S/O. KUNJUVAREED, NAZHIAMPARA HOUSE, KARUPPAM DESOM, KUNNAPILLY, POWER OF ATTORNEY HOLDER OF KOCHUDEVASSY, S/O. OUSEPH, NELOOR VILLAGE, PUSHPAGIRI. 2. STATE OF KERALA, REPRESENED BY PUBLIC PROSECUTOR, DISTRICT COURT. 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.1326 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of December, 2009 ORDER Revision petitioner is the accused in S.T.No.6926/1997 of Judicial First Magistrate Court, Chalakkudy and appellant in Crl.Appeal No.408/2000 of III Additional Sessions Judge(Adhoc) Fast Track Court No.I, Thrissur. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced undergo simple imprisonment for three months and to pay a compensation of Rs. 80,000/- , in default to undergo simple imprisonment for two months by the trial court. On appeal , his conviction was confirmed, but sentence was modified to the effect that he was sentenced to undergo simple imprisonment for one month and to pay compensation of Rs. 1,10,000/- , in default, to undergo simple imprisonment for two 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 Crl.R.P.No.1326/2003 Page numbers that accused borrowed Rs. 1,10,000/- from the complainant and to discharge that liability the accused issued the cheque Exts.P1 dated 12-5-1997 drawn on the Muthuvara branch of Catholic Syrian Bank which 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.P5 dated 31-10-1997, 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. PW 1 was examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. 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 Crl.R.P.No.1326/2003 Page numbers 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. 5. Heard the counsel for the revision petitioner. Counsel for the first respondent remained absent. 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 Ext.P1 to P9 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 Crl.R.P.No.1326/2003 Page numbers supported by Exts.P1 to P9. 8. The case of the accused was that he borrowed Rs. 20,000/- from one Kochu Devassy while he was in gulf and that the cheque was issued to his son as security and that complainant has misused the said cheque and created Ext.P1. No evidence was adduced by the accused to prove his case. That part, as the accused has admitted the execution of Ext.P1 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 simple imprisonment for three months and to pay compensation of Rs. 80,000/-, in default to undergo simple imprisonment for two Crl.R.P.No.1326/2003 Page numbers months. On appeal, the lower appellate court modified the sentence to simple imprisonment for one month and to pay compensation of Rs. 1,10,000/- , in default to undergo simple imprisonment for two months. The transaction is of the year 1997. Therefore I feel that a sentence of imprisonment till the rising of court and a compensation of Rs. 1,20,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 1,20,000/-, in default, to undergo simple imprisonment for three months. Two month's time is granted for payment of compensation. Revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1326/2003 Page numbers Crl.R.P.No.1326/2003 Page numbers Crl.R.P.No.1326/2003 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1326/2003 Page numbers Crl.R.P.No.1326/2003 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1326/2003 Page numbers