IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 Crl.Rev.Pet.No. 959 of 2002() ----------------------------- CRA.203/1998 of ADDL.SESSIONS COURT-III, KOZHIKODE ST.8/1995 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.P.JOSEPH, S/O.PUNNOOSE, PANACHICKAL HOUSE, VELLAVOOR VILLAGE, P.O.THAZHATH VADAKARA, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31. 2. M/S.ESKEY TIMBERS, REPRESENTED BY P.N.KHALID, MANAGING PARTNER, S/O.C.P.USMAN KOYA, EAST KALLAI, CALICUT-3. PUBLIC PROSECUTOR SMT.REKHA C. NAIR SRI.V.G.ARUN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.959 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2009 ORDER The revision petitioner is the accused in S.T.No.8/1995 of Chief Judicial Magistrate Court, Kozhikode and appellant in Crl.Appeal No.203/1998 of III Addl. Sessions Court, Kozhikode. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months by the trial court which is confirmed in appeal. 2. The case of the revision first respondent/complainant as testified by him as PW1 and as detailed in the complaint before the trial court was that the complainant is a dealer in timber and timber logs, that for supplying timber, the accused obtained an advance of Rs. 1,50,000/-, that later when the accused could not supply the timber as agreed upon, he issued the cheque Ext.P1 dated 15-11-1994 drawn on the Changanassery branch of State Bank of Travancore 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 Crl.R.P.No.959/2002 Page numbers in spite of the notice - Ext.P3 dated February 23, 1994 which was returned unclaimed, , the accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant PW1 and took cognizance of the case. The accused/revision petitioner 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 P8 were marked on the side of the complainant before the trial court. On the side of the accused, DW1 was examined and Exts.D1 to D4 were marked. When questioned under Section 313 Cr.P.C. by the Magistrate, the accused denied the entire transaction. 4. The trial court on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has come up in revision challenging his conviction and sentence. Crl.R.P.No.959/2002 Page numbers 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act 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 6. On the side of the complainant PWs 1 and 2 were examined and Exts.P1 to P8 were marked before the trial court. PW1 is the complainant. PW 2 is the Manager of the bank. I have gone through the evidence of PW1. I find no suspicious inconsistencies or discrepancies in his evidence so as to discredit his evidence. Further his evidence is supported by Exts.P1 to P7 and PW 2 , the manager of the bank. Therefore, in my view the trial court is perfectly justified in believing his evidence. 7. The only contention raised by the revision petitioner is that he is not Dinamparambil Jose in whose name Ext.P4 notice was sent and that therefore there is no proper compliance of proviso (b) to Crl.R.P.No.959/2002 Page numbers Section 138 of Negotiable Instruments Act. To prove this aspect, he has examined DW1, one person called Dinamparambil Jose before the trial court. I find no substance in the above contention. In the notice Ext.P4, house number of the accused is shown. Ext.P7 is the certificate issued by Vellavoor Panchayat office wherein it is certified that the said building belongs to the accused. PW 2 is the Postman who took Ext.P4 for delivery. He has deposed before the trial court that himself and the accused are classmates and they are neighbours and that the building number given in Ext.P4 is that of the accused. So it is clear from the above fact that Ext.P4 notice was issued in the correct name and address of the accused. Therefore the contention of the accused that no notice was issued to him in the correct address cannot be accepted. No other point is argued before me. For all these reasons, I am inclined to hold that the trial court as well as the lower appellate court is justified in believing the evidence of PW1 and convicting the accused under Section 138 of the Negotiable Instruments Act and I confirm the said conviction. Crl.R.P.No.959/2002 Page numbers Point No.2 8. As regards the sentence, the trial court imposed simple imprisonment for three months which is confirmed in appeal. The transaction is of the year 1994 . Therefore I feel that a sentence of fine of Rs. 1,50,000/- being the cheque amount would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The revision petitioner/accused is sentenced to pay a fine of Rs. 1,50,000/- in default, to undergo simple imprisonment for six months. Fine amount, if realised, shall be paid to PW1/complainant as compensation as provided under Section 357(1) Cr.P.C. His bail bonds are cancelled. He shall pay the fine amount on or before 30-11-2009. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.959/2002 Page numbers Crl.R.P.No.959/2002 Page numbers Crl.R.P.No.959/2002 Page numbers Crl.R.P.No.959/2002 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.959/2002 Page numbers