IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 708 of 2002() ----------------------------- CRA.277/1999 of ADDL.SESSIONS COURT, KOTTAYAM CC.2/1994 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- VIJAYAKUMAR, S/O.THAMPI, KAITHAYIL HOUSE, PARIYARAM P.O.,PUTHUPALLY VILLAGE BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- 1. ROY JOSEPH, PARACKAL HOUSE, GANDHINAGAR P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.S.K.AJAY KUMAR FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.708 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2009 ORDER Challenge in this revision petition is to the judgment of the Chief Judicial Magistrate, Kottayam in C.C.No.2/1994 dated November 12,1999 convicting the accused under Section 138 of Negotiable Instruments Act and sentencing him to undergo simple imprisonment for two months and to pay a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for a further period of one month which is confirmed in appeal by the Additional Sessions Judge, Kottayam in Crl.Appeal No.277/1999 by judgment dated March 6, 2002. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 10,000/- from the complainant and to discharge that liability the accused issued the cheque Exts.P1 dated September 22, 2003 drawn on the Pariyaram branch of State Bank of Travancore which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the Crl.R.P.No.708/2002 Page numbers accused in the bank and that in spite of notice Ext.P4 dated 14-10-1993 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 P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. DW1 was examined and Exts.D1 to D3 series were marked on his side. 4. The trial court 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 and revision first respondent/complainant. Crl.R.P.No.708/2002 Page numbers 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. PWs 1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant to prove the guilt of the accused. PW1 is the complainant. PW2 is the Bank Manager. PW1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6 and the evidence of PW 2. 8. The case of the accused was that he was the owner of a bus and Ullattil Financers seized the bus and at that time cheque book kept in the bus was also lost and misusing one of the cheque leaves, the complainant has created Ext.P1. In an attempt to prove this case, DW1, Crl.R.P.No.708/2002 Page numbers the conductor of the bus, was examined. But the trial court as well as the lower appellate court has disbelieved the evidence of DW1. For all these reasons, I am inclined to confirm the findings of both the courts below that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 9. As regards the sentence, the trial court imposed a sentence of simple imprisonment for two months and to pay a fine of Rs. 15,000/-. Out of the fine amount, Rs. 10,000/- was ordered to be paid to PW1 as compensation which is confirmed in appeal. The transaction is of the year 1993. Therefore I feel that the substantive sentence can be reduced to imprisonment till the rising of court. The sentence of fine and the direction to pay compensation to the complainant is maintained. One month's time is granted for payment of fine. Revision petitioner shall surrender before the trial court on or before 08-01-2010 to receive the sentence. The amount, if any, Crl.R.P.No.708/2002 Page numbers deposited by the revision petitioner before the trial court shall be adjusted towards the fine imposed. The complainant is entitled to withdraw that amount. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.708/2002 Page numbers Crl.R.P.No.708/2002 Page numbers P.Q.BARKATH ALI JUDGE Crl.R.P.No.708/2002 Page numbers sv. Crl.R.P.No.708/2002 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.708/2002 Page numbers