IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.Rev.Pet.No. 521 of 2001() ----------------------------- CRA.8/1999 of ADDL. SESSIONS COURT, ALAPPUZHA CC.436/1997 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- K.S.CHANDRASEKHARAN NAIR KARAYIDATHU VEEDU MITHRAKARY P.O. MITHRAKARY, ALLEPPEY BY ADV. SRI.P.CHANDRASEKHAR SRI.S.SHANAVAS KHAN RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE --------------- 1. MATHEW ANTONY M/S. JOY HARDWARES RAMANKARY P.O., ALAPPUZHA 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR SMT.REKHA.C NAIR SRI.ASP.KURUP FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.521 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2009 ORDER The revision petitioner is the accused in C.C.No.436/1997 of Judicial First Class Magistrate Court, Ramankary and the appellant in Crl.Appeal No.8/99 of Sessions Court, Alappuzha. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for one year. He was also directed to pay a fine of Rs. 14,500/- to the complainant as compensation under Section 357 of Cr.P.C., in default, to undergo simple imprisonment for a further period of one month by the trial court. The lower appellate court on appeal confirmed the conviction, but modified the sentence to the effect that the revision petitioner shall undergo simple imprisonment for three months. The order directing to pay compensation is also confirmed by the lower appellate court. The accused has now come up in revision challenging his conviction and sentence. 3. The revision first respondent/complainant filed a private CRRP.No.521/2001 Page numbers complaint before the trial court alleging that he was running a Hardware store by name Joy Hardwares and that the revision petitioner/accused purchased construction materials on credit and to discharge that liability, he issued cheque- Ext.P1 on 13-08-1997 drawn on the Ramankary Service Co-operative Bank for Rs. 14,484/- which when presented for collection was returned dishonoured for want of sufficiency of founds in the account of the accused in the bank and that inspite of notice-Ext.P4, the accused did not repay the amount nor sent any reply and that therefore the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 4. On receipt of the complaint, the trial court recorded the sworn statement of PW1, the complainant and took cognizance of the case. The revision petitioner/accused on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. On the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P10 were marked. When questioned under Section 313 Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. CRRP.No.521/2001 Page numbers 5. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him and sentenced him as aforesaid. On appeal, the lower appellate court confirmed his conviction, but modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 6. The following points arise for consideration . 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by both the courts below can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. On the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P10 were marked before the trial court. PW1- complainant testified in terms of the complaint. I have gone through the evidence of PW1. Nothing was brought out in cross examination to CRRP.No.521/2001 Page numbers discard his evidence. No inconsistencies or discrepancies were brought out during his cross examination. Further his evidence is supported by Exts.P1 to P10 and that of the bank Manager PW2. The trial court as well as the lower appellate court has chosen to believe his evidence and came to the conclusion that the revision petitioner has issued the cheque Ext.P1 to discharge his liability 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 that inspite of the notice - Ext.P4, he did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. I find no ground to come to a different conclusion. Therefore, I am inclined to confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act rendered by the trial court which is confirmed in appeal. Point No.2 As regards the sentence, the transaction is of the year 1997. Further the revision petitioner is a coolie . Taking into consideration all these aspects, I feel that a sentence of fine of Rs. 14,500/- would CRRP.No.521/2001 Page numbers 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 rendered by the trial court which is confirmed in appeal is upheld. Sentence is modified to the effect that the revision petitioner is sentenced to pay a fine of Rs. 14,500/-, in default, to undergo simple imprisonment for two months. The order of trial court which is confirmed in appeal to pay compensation to PW1 is also set aside. Fine amount, if realised, shall be paid to the complainant as compensation as provided under Section 357(1) of Cr.P.C. Three month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. CRRP.No.521/2001 Page numbers