IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 Crl.Rev.Pet.No. 3229 of 2004() ------------------------------ CRA.NO.32/2003 OF SESSIONS COURT, ALAPPUZHA CC.NO.1195/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I CHERTHALA REVN. PETITIONER/ APPELLANT/ACCUSED: --------------------------------------- RAJAN, S/O. RAMAKRISHNAN, NEDUMPARAMBIL HOUSE, CHERUVARANAM, MARUTHORVATTOM P.O., CHERTHALA. BY ADV. SRI.T.RAJESH RESPONDENTS/ RESPONDENTS/COMPLAINANT: --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.V.KRISHNA SHENOI, RESMI, CMC WARD NO.3, CHERTHALA P.O.,CHERTHALA. PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3229 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of March, 2011 ORDER Revision petitioner is the accused in C.C.No.1195/1998 on the file of Judicial First Class Magistrate Court I, Cherthala and appellant in Crl.Appeal No.32/2003 of Sessions Court, Alappuzha. The learned Magistrate by judgment dated January 10, 2003 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for two months and to pay a compensation of Rs.55,000/-, in default to undergo simple imprisonment for one month which is confirmed in appeal by the learned Sessions Judge by judgment dated November 3, 2004. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the second respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that the accused borrowed Rs. 50,000/- from him and to discharge Crl.R.P.No.3229/2004 2 that liability, he issued the cheque Ext.P1 dated October 11, 2001 which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4, 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 P8 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 and D2 were marked on his side. 4. The learned Magistrate 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 Crl.R.P.No.3229/2004 3 accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant. 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. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further, his evidence is supported by Exts.P1 to P8 and the evidence of PW2, the Manager of the Bank. 8. The specific case of the accused as suggested during cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. and as testified by him as DW1 was that complainant is a person engaged in money lending and that in the Crl.R.P.No.3229/2004 4 month of May 1995, he borrowe Rs. 10,000/- from the complainant for the purpose of Anjali Pharmaceuticals run by his wife and at that time he issued two blank signed cheques to the complainant and that the complainant has misused the same and filed this false case against him. Accused was examined as DW1 and he produced Exts.D1 and D2. But the evidence adduced by him does not in any way help him to prove his case. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Crl.R.P.No.3229/2004 5 Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for two months and to pay a compensation of Rs. 55,000/-, in default to undergo simple imprisonment for a further period of one month, which is confirmed in appeal. 11. When the revision petition came up for hearing today, counsel for the revision petitioner submitted that the entire amount due under the cheque has been realised by the second respondent/complainant in execution of the decree in O.S.No.673/2001 before the Principal Munsiff Court, Cherthala. He has produced a copy of the judgment and the copy of the statement filed by the decree holder in the execution proceedings which is also admitted by the counsel for the second respondent/complainant. Therefore, a lenient view is taken and in the circumstances of the case, I feel that a sentence of fine of Rs. 1,000/- in default to undergo simple imprisonment for one month would meet the ends of justice. 12. Counsel for the revision petitioner submitted that he has deposited Rs. 15,000/- before the trial court at the time of suspending Crl.R.P.No.3229/2004 6 the sentence. Out of the said Rs. 15,000/-, an amount of Rs. 7,500/- shall be returned to the revision petitioner/accused and Rs. 7,500/- to the second respondent/complainant. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that he is sentenced to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month. One month time is granted for payment of fine amount. Bail bonds of the accused are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3229/2004 7