IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 821 of 2004(C) ----------------------------- CRA.39/2002 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CC.933/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDURG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.SHAHUL HAMEED, S/O. A.G.MOHAMMED KUNHI, POOCHOL, NORTH TRIKARIPUR, P.O.TRIKARIPUR. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. K.KOMAN NAIR, S/O. K.KANNAN NAIR, AGED 61 YEARS, 'SREE NILAYAM', KAVVAI, HOSDURG, P.O.KANHANGAD. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI SABU SREEDHARAN SRI.T.K.VIPINDAS FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 821 of 2004 ------------------------------------------------------ Dated: SEPTEMBER 28, 2010 ORDER This revision is by the accused in C.C.No.933/1998 on the file of the JFCM Court-I, Hosdurg. He challenges his conviction under sec.138 of the Negotiable Instruments Act and sentence to undergo rigorous imprisonment for nine months which is confirmed in appeal by the Addl. Sessions Judge (Ad Hoc-I), Kasaragod, by judgment dated 17.12.2003 in Crl.A.39/2002. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as stated in the complaint is that the accused borrowed Rs.2 lakhs from him and to discharge that liability, the accused issued the cheque Ext.P1 dated February 25, 1998 which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P3 dated July 1, 1998, the accused did not repay the amount, which is an offence punishable under sec.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 when appeared before the CRL. R.P. 821 of 2004 2 trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction and submitted that the cheque Ext.P1 was actually issued to one Krishnan Master with whom the accused had some transaction and that the complainant has managed to obtain that cheque and filed this false complaint. No defence evidence was adduced. 4. Heard the counsel for the revision petitioner/accused and the revision 1st respondent/complainant. 5. The following points arise for consideration:- I. Whether the conviction of the revision petitioner by the trial court under sec.138 of the Negotiable Instruments Act, which is confirmed in appeal, can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? POINT NO.I 6. The revision 1st respondent/complainant as PW.1, testified in terms of the complaint before the trial court. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P4. 7. The specific case of the revision petitioner/accused when questioned under Sec.313 Cr.P.C. and as suggested during the cross- CRL. R.P. 821 of 2004 3 examination of PW1 was that the cheque was issued for Rs.25000/- to one Krishnan Master with whom the accused had some transaction and that the complainant had managed to file this false complaint against him. No evidence was adduced by the accused to prove his case. That apart, as the accused admitted the execution of the cheque Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. Therefore I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of the complainant and coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore the conviction of the accused under sec. 138 of the Negotiable Instruments Act is confirmed. POINT No.II 8. As regards the sentence, the learned Magistrate imposed a sentence of rigorous imprisonment for nine months. The lower appellate court has confirmed the same i appeal. As the transaction is of the year 1998, I feel that imprisonment till the rising of court and a fine of Rs.2,10,000/-, in default to undergo simple imprisonment of three months would meet the ends of justice. CRL. R.P. 821 of 2004 4 9. In the result, the conviction of the revision petitioner/accused under Sec.138 of the Negotiable Instruments Act is upheld. He is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.2,10,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to the revision 1st respondent/complainant as compensation as provided under Sec.357(1) Cr.P.C. Three months time is granted for payment of fine. His bail bonds are cancelled. The accused shall surrender before the trial court on or before October 20, 2010 to suffer the sentence. The Crl.R.P. is disposed of as found above. P.Q. BARKATH ALI, JUDGE mt/-