IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 Crl.Rev.Pet.No. 1094 of 2002() ------------------------------ CRA.110/1999 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.107/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER/ APPELLANT-ACCUSED -------------------------------------- KARUPPAN VEETTIL ABOOBACKER, S/O. KUNJUMON, BALANGAD DESOM, ERATTUPUZHA AMSOM, CHAVAKKAD TALUK. BY ADV. SRI.N.J.JOHNSON RESPONDENTS/ RESPONDENT-COMPLAINANT ------------------------------------- 1. KUNJUMUHAMMED, S/O. HASSANKUTTY, AKALAD DESOM, PUNNAYOOR AMSOM, CHAVAKKAD TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.RAJIT FOR R1 PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P.NO.5798/2002 IN CRL.R.P.NO.1094 OF 2002 DISMISSED 25-07-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1094 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of July, 2011 ORDER Revision petitioner is the accused in C.C.No.107/1998 on the file of Judicial First Class Magistrate Court, Chavakkad and appellant in Crl.Appeal No.110/1999 of Addl. Sessions Court (Adhoc) Fast Track I, Thrissur. The learned Magistrate by judgment dated February 17, 1999 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months and to pay a compensation of Rs.1,00,000/- to the complainant which is confirmed in appeal by judgment dated March 14, 2002. 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 is as follows : The accused is the son-in-law of the complainant. During the marriage, the complainant had given 16 ½ soverigns of gold ornaments Crl.R.P.No.1094/2002 2 and Rs.35,000/- as cash to his daughter. The cash and the gold ornaments were taken away by the accused. After some time, the marriage ended in a Talaque and the accused owed Rs.100,000/- towards the value of gold ornaments and cash. To discharge that liability, the accused issued Ext.P1 cheque for Rs.1,00,000/- drawn on the Chavakkad branch of South Indian Bank Ltd. 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.P4 dated January 8, 1998, 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. PWs 1 and 2 were examined and Exts.P1 to P8 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 Crl.R.P.No.1094/2002 3 evidence was adduced. 4. The learned Magistrate 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 which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant. 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 as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P8 and the evidence of PW2, the Crl.R.P.No.1094/2002 4 Bank Manager. 8. The specific case of the accused as suggested during cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was of total denial. No evidence was adduced by him to prove his case. Therefore, in my view, both the courts below are justified in rejecting the above contention of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has 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 10. As regards the sentence, the trial court imposed a sentence Crl.R.P.No.1094/2002 5 of simple imprisonment for six months and to pay a compensation of Rs. 1,00,000/- which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1998, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.1,00,000/- with default would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 1,00,000/- to the complainant, in default to undergo simple imprisonment for two months. Two months' time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before 25/08/2011 to suffer the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1094/2002 6