IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.Rev.Pet.No. 2201 of 2004(A) ------------------------------- CRA.73/2001 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.1242/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------- JOHN EASO, S/O.EASO, PUTHENPARAMBIL HOUSE, KANHIRAPUZHA P.O., MANNARKKAD TALUK, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS/RESPONDENTS/ COMPLAINANT. --------------------------- 1. P.T.ABRAHAM, S/O.THOMAS, PANTHAPILAKKAL HOUSE, ARIYUR, KANJIRAPUZHA AMSOM, DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.J.JOY FOR R1 SRI.V.J.JAMES FOR R1 SMT.TINY THOMAS FOR R1 PUBLIC PROSECUTOR SRI.K.B.RAMANAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.10190/2004 IN CRL.R.P.No.2201/2004 DISMISSED 31-01-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2201 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of January, 2011 ORDER Revision petitioner is the accused in S.T.No.1242/1997 on the file of Judicial First Class Magistrate Court, Mannarkkad and appellant in Crl.Appeal No.73/2001 of Addl. Sessions( Fast Track) Court I, Palakkad. The learned Magistrate by judgment dated January 24, 2001 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 48,000/-. Fine amount, if realised, was ordered to be paid to the complainant under Section 357(3) Cr.P.C. On appeal by the accused, the learned Sessions Judge by judgment dated July 8, 2004 confirmed his conviction, but modified the sentence to simple imprisonment for one month and to pay a compensation of Rs.48,000/- in default to undergo simple imprisonment for one month. The accused has now come up in revision challenging his conviction and sentence. 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 Crl.R.P.No.2201/2004 2 that the accused borrowed Rs. 48,000/- from him and to discharge that liability, accused issued the cheque Ext.P1 dated July 2, 1997 drawn on the Kanhirapuzha branch of State Bank of India 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.P3(a) dated July 28,1997, 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 to 3 were examined and Exts.P1 to P5 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 Ext.D1 was marked on his side. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Crl.R.P.No.2201/2004 3 Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal, the lower appellate court confirmed his conviction, but modified the sentence as aforesaid. The 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 P5 and the evidence of Pws 2 and 3. 8. The specific case of the accused as suggested during cross Crl.R.P.No.2201/2004 4 examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that the complainant has no ability to pay Rs. 58,000/- to him and that he has not issued the cheque Ext.P1 to the complainant. PW1, the complainant during cross examination testified that he has sold the property and paid the amount to the accused. In an attempt to prove that PW1 has sold the property only for Rs.5,000/-, accused examined DW1 and produced Ext.D1, the registration copy of the sale deed executed by PW1 which was only for Rs.5,000/-. But the evidence of DW1 and Ext.D1 does not in any way help the accused to prove that he has not borrowed any amount from the complainant or did not issue the cheque Ext.P1. The accused has no explanation to offer how complainant happened to be in possession of the cheque Ext.P1 which was issued to the account in his name. Therefore, the trial court as well as the lower appellate court are justified in rejecting the above case of the accused and accepting the case of the complainant and coming to the conclusion that accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under Crl.R.P.No.2201/2004 5 Section 138 of Negotiable Instruments Act. Point No.2 9. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for three months and to pay a fine of Rs. 48,000/- which is modified by the lower appellate court to simple imprisonment for one month and to pay a compensation of Rs. 48,000/- to the complainant with default sentence. Taking into consideration the fact that the transaction is of the year 1997, I feel that a sentence of imprisonment till the rising of court and a direction to pay a compensation of Rs.48,000/- to the complainant with default sentence would meet the ends of justice. 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 revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 48,000/- to the complainant in default to undergo simple imprisonment for one month. Two months' time is granted for payment of compensation. The amount, if any, deposited by the revision Crl.R.P.No.2201/2004 6 petitioner before the trial court shall be adjusted towards the compensation amount ordered to be paid. The revision petitioner shall surrender before the trial court on or before February 28, 2011 to suffer the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2201/2004 7