IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.Rev.Pet.No. 984 of 2003() ----------------------------- CRA.577/2002 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.734/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- P.P. PRASANNA KUMAR FORMER SHIFT ASSISTANT, II0 KV SUB STATION, TRICHUR TRANSMISSION CIRCLE, MANNARKADU P.O., PALAKKAD DISTRICT, ELAVANKAL PARAMBU, A.K.G. CROSS ROAD, TALL GATE, EDAPPALLY P.O. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE RESPONDENT(S): RESPONDENTS/COMLPLAINANT AND STATE: -------------------------------------------------- 1. C.K. SHANMUGHAN, S/O. THE LATE KUNJAN, 'KOONATH' HOUSE, EDAPPALLY NORTH P.O., COCHIN-24. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. ADV. SRI.C.S.MANU FOR R1 GOVT. PLEADER SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.984 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2009 ORDER The revision petitioner is the accused in C.C.No.734/1999 of Additional Chief Judicial Magistrate ( Economic Offences) Court, Ernakulam and appellant in Crl.Appeal No.572/2002 of 4th Additional Sessions Court, Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 40,000/-, in default, to undergo simple imprisonment for two months by the trial court. Out of the fine amount, Rs. 38,000/- was directed to be paid to the complainant as compensation. On appeal, the learned Sessions Judge confirmed the conviction of the revision petitioner , but sentence is modified to the effect that the accused was sentenced to pay a fine of Rs. 40,000/-, in default, to undergo simple imprisonment for two months. Now the accused has come up in revision challenging his conviction and sentence. Crl.R.P.No.984/2003 Page numbers 2. The case of the first respondent complainant as testified by him as PW1 and as detailed in the plaint before the trial court was that accused borrowed Rs. 30,000/- from him on July1 1996 promising to repay it within six months and that on demand accused issued a cheque Ext.P1 dated March 3, 1997 drawn on the Federal Bank of Edappally branch and that in spite of notice Ext.P3, 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. PW1 was examined and Exts.P1 to P5 were marked. When questioned under Section 313 of Cr.P.C. by the trial court, the accused denied the entire transaction. DWs 1 and 2 were examined and Exts.D1 to D7 were marked on the side of the accused. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted Crl.R.P.No.984/2003 Page numbers him thereunder and sentenced him as aforesaid. On appeal, his conviction was confirmed, but sentence was modified as aforesaid. Now the accused has come up in revision challenging his conviction and sentence. 4. 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 5. On the side of the complainant, PW 1 was examined and Exts.P1 to P5 were marked . I have gone through the evidence of PW1. Nothing was brought out during his cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P5. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified in accepting his evidence. Crl.R.P.No.984/2003 Page numbers 6. The case of the accused is that in 1994, he borrowed some amount from one Bose and at that time he issued a blank cheque which is mis-used by the complainant and created Ext.P1 . As DW1, he testified in terms of his case. DW2 was examined on the side of the accused to show that accused was working in the KSEB office, Mannarkkad . To support his case, he produced Exts.D1 to D7. But the lower court has chosen to reject their evidence. On going through their evidence, I find no reason to come to a different conclusion. Further the accused has not chosen to examine the alleged Bose to whom he had issued the blank cheque. Therefore, in my view, the lower court is perfectly justified in accepting the evidence of the complainant and holding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act which is confirmed in appeal. Therefore, I uphold the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 7. As regards the sentence, the lower appellate court has imposed a fine of Rs. 40,000/- only, in default, to undergo simple Crl.R.P.No.984/2003 Page numbers imprisonment for two months. I find no reason to reduce the sentence. In the result, the revision petition is dismissed. Out of the fine amount, Rs. 30,000/- shall be paid to PW1 as compensation. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.984/2003 Page numbers