IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 420 of 2002() --------------------------------------- CRA.112/1999 of II ADDL.SESSIONS COURT, KOLLAM CC.68/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------- KAMAL (KAMALUDEEN), S/O.SHAHUL HAMEED, KANAKAVILA PUTHEN VEEDU, BEACH NORTH WARD, KOLLAM. BY ADV. MR.S.ABDUL RAZZAK RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: --------------------------- 1. THAJUDEEN KOYA THANGAL, THANGAL'S SINDHOOR JEWELLERY, LAKSHMINADA, KOLLAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, ADVOCTE GENERAL'S OFFICE, HIGH COURT BUILDINGS, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER Counsel for the revision petitioner absent. Crl. R.P. Is dismissed for non- prosecution. 08/12/2009 SD/- P.Q.BARKATH ALI, JUDGE ORDER ON CRL.MP. NO.2826/2002 IN CRRP. NO.420/2002 DISMISSED 08/12/2009 SD/- P.Q.BARKATH ALI, JUDGE TRUE COPY P.S. TO JUDGE tss P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.420 of 2002 ------------------------------------------------------ Dated: JANUARY 18, 2010 ORDER The revision petitioner is the accused in C.C. No.68/1995 of Judicial First Class Magistrate Court-II, Kollam, and the appellant in Crl.A.112/1999 of II Addl. Sessions Court, Kollam. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.60,000/-. On appeal by the accused the lower appellate court confirmed his conviction, but modified the sentence to simple imprisonment for a period of six months and to pay a fine of Rs.5000/- to the complainant. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint was that the accused borrowed Rs.1,35,000/- from the complainant on 2.10.1994 and to discharge that liability the accused issued the cheque Ext.P1 dated 2.10.1994 which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P2 dated November 11, 1994, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. Crl.R.P.420/02 2 3. On receipt of the complaint the learned magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused admitted the issuance of the cheque and stated that the cheque was issued as security, but denied the transaction. The complainant was again examined as DW.1 and Ext.D1 was marked on the side of the accused. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal his conviction was confirmed but the 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. The revision 1st respondent/complainant remained absent. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be Crl.R.P.420/02 3 sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The complainant/PW.1 testified in terms of the complaint before the trial court. No serious discrepancies were brought out during his cross-examination to discredit his evidence. Further his evidence is supported by P.W.2 and Exts.P1 to P6. 8. The case of the revision petitioner/accused when questioned under sec.313 Cr.P.C. by the trial court was that Ext.P1 cheque was issued only as security and that therefore he is not liable to pay any amount to the complainant. There is no substance in the above contention. No reliable evidence is adduced by the accused to prove the same. The complainant, as Manager and Proprietor of Thangal Sinthoor Jewellery, Kollam, was summoned and examined as DW.1 on the side of the accused and the Day Book of the jewellery shop was marked as Ext.D1 on the side of the accused. The specific case of PW.1/complainant was that on October 2, 1994, the accused went to the shop of PW.1 and borrowed the amount and issued the cheque Ext.P1. Accused contended that October 2nd is a holidy, that the shop would be closed on that day and that therefore the above version of Crl.R.P.420/02 4 PW.1 cannot be believed. There is no substance in the above contention of the accused. The complainant when examined as DW.1 testified that on that date the shop was opened for stock taking and that the accused came there after ascertaining over phone whether the complainant was present in the shop. Therefore, the trial court as well as the lower appellate court are perfectly justified in rejecting the above contention of the accused. As the accused has admitted the execution of the cheque Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available for the complainant. The accused did not adduce any evidence to rebut the above presumption. 9. For all these reasons accepting the evidence of PWs.1 and 2, I hold that the trial court as well as the lower appellate court is perfectly justified in holding that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore I confirm his conviction under sec.138 of the Negotiable Instruments Act. Point No.II 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs.60,000/-. On appeal it was modified to the effect that he was Crl.R.P.420/02 5 sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5000/-. The transaction is of the year 1994. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs.1,35,000/-, in default to undergo simple imprisonment for six months, would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. He is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.1,35,000/-, in default to undergo simple imprisonment for six months. One month time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on or before February 25, 2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.2826 of 2002 Dismissed. 18.1.2010 P.Q. BARKATH ALI, JUDGE mt/-