IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Crl.Rev.Pet.No. 744 of 2004() ----------------------------- CRA.6/2000 of ADDL. SESSIONS COURT (AD HOC), KALPETTA CC.822/1996 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... REVN. PETITIONER(S): APPELLANT - ACCUSED --------------------- SHOUKATHALI, S/O. KUTTI AYAMU, ALINKAL HOUSE, MOOLANKAVU, BATHERY TALUK. BY ADV. SRI.C.AJITH KUMAR (KALLESSERIL) SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENT(S): RESPONDENTS - COMPLAINANT & STATE --------------- 1. K.K.JOSEPH, S/O. KURIYAKKOSE, IRUPPAKOTIL HOUSE, MOOLANKAVU, SULTHAN BATHERY. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.K.JOSE FOR R1 SMT.TESSY JOSE FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.744 of 2004 ------------------------------------------------------ Dated: JULY 22, 2010 ORDER The challenge in this revision is to the judgment of Judicial First Class Magistrate, Sulthan Batheri in CC 822/1996 dated January 20, 2000, convicting the accused/revision petitioner under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months, which is confirmed in appeal by the Addl. Sessions Court, (Adhoc), Kalpetta, Wayanad in Crl.A.6/2000 by judgment dated July 18, 2003. 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 in brief is this:- The accused took a loan of Rs.26,000/- from the complainant on June 10, 1995 and to discharge that debt he issued Ext.P1 cheque for Rs.26,000/- on August 19, 1995 drawn on the Service Co-operative Bank, Kalloor which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of the notice Ext.P3 dated August 30, 1995, 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 trial court recorded the CRL. R.P.744 of 2004 2 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 case of the accused was that he was a minor at the time of issuance of the cheque Ext.P1. He got himself examined as DW1 and Ext.D1 true extract of the admission register was marked on his side. 4. The trial court on an appreciation of evidence found that the cheque Ext.P1 was issued by the accused in discharge of his debt to the complainant and rejected the case of the accused that he was a minor at the time of the issuance of the cheque Ext.P1 and found that the accused has committed an offence punishable under sec.138 of the 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 and the counsel for the 1st respondent/complainant. 6. The following points arise for consideration:- CRL. R.P.744 of 2004 3 I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The 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 P6. 8. The case of the revision petitioner/accused as testified by him as DW1 before the trial court was that at the time of the issuance of Ext.P1 cheque he was a minor and therefore he was not bound by the same. To prove his case he produced Ext.D1 true extract of the school admission register wherein his date of birth was shown as February 4, 1979. The date of issuance of the cheque is August 19, 1995. But the trial court as well as the Appellate Court has rejected his evidence. Further, Ext.D1 was not properly proved. But in the voters' list of Sulthan Bathery Grama Panchayat for the year 1994, his name was shown as Sl.No.764 wherein his age was shown as 18. The voter's list was confronted during the cross-examination of DW.1 and he admitted the same. Therefore both the courts below are CRL. R.P.744 of 2004 4 perfectly justified in rejecting the contention of the accused that he was a minor at the time of issuance of Ext.P1 cheque. 9. That apart, as the issuance of Ext.P1 is admitted by the accused, 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. 10. For all these reasons I am inclined to hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW.1 and holding that the accused has issued the cheque Ext.P1 to discharge his debt towards the complainant, which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and in spite of the notice Ext.P3, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. The conviction of the accused is therefore confirmed. Point No.II 11. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months, which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1995 and that the accused was aged only 18 at the time of CRL. R.P.744 of 2004 5 the issuance of the cheque Ext.P1, I feel that imprisonment till the rising of court and a fine of Rs.26,000/- with default sentence would meet the ends of justice. 12. In the result, the revision petition is allowed in part. The conviction of the revision petitioner entered by the trial court which is confirmed in appeal is upheld. The sentence imposed by the trial court which is confirmed in appeal is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.26,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to the complainant as compensation as provided under sec.357(1) of Cr.P.C. Counsel for the revision petitioner submits that he has already deposited half the cheque amount before the trial court. The said shall be adjusted towards the fine imposed by this court. The complainant is permitted to withdraw the amount already deposited by the accused before the trial court. The revision petitioner shall surrender before the trial court on or before August 16, 2010 to undergo the sentence. Two months time is granted for payment of fine. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mt/-