IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 Crl.Rev.Pet.No. 1505 of 2001() ------------------------------ CRA.60/1999 of ADDL.SESSIONS COURT, KOZHIKODE CC.435/1996 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------- PRADEEP KUMAR, S/O. GOPALAN, AGED 38 YEARS, VADAKKAYIL HOUSE, PUDUPPANAM, VADAKARA TALUK. BY ADV. SRI.R.PARTHASARATHY RESPONDENT(S): RESPONDENTS/COMPLAINANT& STATE:- --------------- 1. T.M. BHASKARAN, S/O.KUNHIRAMA KURUP, MANIYELA, NADAKKUTHAZHE, VADAKARA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SMT. REKHA C. NAIR FOR R2. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl..M.P. No. 6985/2001 in Crl.R.P. No. 1505/2001 Dismissed 6-11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1505 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 6th day of November, 2009 O R D E R Revision petitioner is the accused in C.C.No.435 of 1996 of the Judicial Magistrate of the First Class, Vadakara and the appellant in Crl.A.No.60 of 1999 of the Sessions Court, Kozhikode Division. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months, which was confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2.The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, was that the accused borrowed Rs.50,000/-from the complainant and to discharge that liability, the accused issued a cheque Ext.P1 dated September 3, 1995, drawn on the Canara Bank, Vadakara branch which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank, that in spite of notice Ext.P3 dated Crl.RP 1505/01 2 December 13, 1995, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the 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. PWs.1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under section 313 Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. The trial court, on an appreciation of the evidence, 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, which was confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 4. Heard the counsel for revision petitioner. Counsel for first respondent/complainant is absent. 5. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? Crl.RP 1505/01 3 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 6. On the side of the complainant, he was examined as PW1, the Bank Manager was examined as PW2 and Exts.P1 to P6 were marked. PW1 the complainant testified in terms of the complaint. I have gone through his evidence. Nothing was brought out in cross-examination to discredit his evidence. Further his evidence is supported by PW2 and Exts.P1 to P6. 7. The case of the revision petitioner before the trial court was that he borrowed Rs.5,000/- from one Chandran, to whom he issued a cheque and that the said Chandran did not return the cheque even though he repaid the said amount to Chandran and making use of that cheque leaf PW1 filed this complaint. The accused did not adduce any evidence to prove his case. That being so, both the courts blow are justified in rejecting the above contention of the accused. Therefore, accepting the evidence of PWs.1 and 2 and Exts.P1 to P6, I confirm the findings of the courts below that the complainant has succeeding in proving his case. Hence, the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act is upheld. 8. As regards the sentence, the trial court has imposed sentence of simple imprisonment for three months, which was confirmed in appeal. Crl.RP 1505/01 4 Taking into account the fact that transaction is of the year 1995, I feel that sentence of imprisonment till the rising of court and fine of Rs.50,000/-, being the cheque amount, in default to undergo simple imprisonment for three months would meet the ends of justice. 9. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which was confirmed in appeal, 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 the court and to pay fine of Rs.50,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realized, shall be paid to PW1 as compensation as provided under section 357(1) of the Cr.P.C. His bail bonds are cancelled. Four months’ time is granted for payment of fine. The revision petitioner shall surrender before the trial court on or before 15-12-2009 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE. mn. Crl.RP 1505/01 5 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1505 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 6-11-2009