IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 1901 of 2004(C) ------------------------------- CRA.27/2003 of ADDL.SESSIONS COURT, KOTTAYAM CC.781/1999 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- PRAKASHAN (VEDAPRAKASH) S/O. NARENDRA BHUSHAN, A.B.PRESS, CHENGANNOOR, ALLEPPEY DISTRICT. BY ADV. SRI.S.HARIKRISHNAN SRI.V.VENUGOPALAN NAIR RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. TIJU T.THOMAS, THAKADIYEL VADAKKETHIL, S.N.PURAM P.O., KOTTAYAM. PUBLIC PROSECUTOR SMT. SUNITHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P. Q. BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 1901 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 28th November, 2011 O R D E R Revision petitioner is the accused in C.C.No.781 of 1999 on the file of the Judicial Magistrate of the First Class- I, Kottayam and the appellant in Crl.A.No. 27/2003 on the file of the Sessions Court, Kottayam. 2. The revision petitioner was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months by the learned Magistrate by judgment dated December 31, 2001. On appeal by the accused, the lower appellate court modified the sentence to undergo simple imprisonment for three months and to pay a compensation of Rs.16,500/-, in default to undergo simple imprisonment for a further period of three months by judgment dated March 25, 2004. The accused has come up in revision challenging his conviction and sentence. 3. The case of the 2nd respondent/accused, as testified by him as PW1 before the trial court and as detailed in the CRRP 1901/2004 2 complaint, in brief, is this:- Towards Rs.16,500/- due to the complainant, the accused issued the cheque Ext.P1 dated April 26, 1999, drawn on the Chengannoor Branch of Dhanalakshmi Bank, 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 in spite of notice Ext.P3 dated October 7, 1999, the accused did not re- pay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 4. On receipt of the complaint, the trial court recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P9 were marked on his side. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. DW1 was examined on his side. CRRP 1901/2004 3 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 thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction but modified the sentence as mentioned above. The accused has come up in revision challenging his conviction and sentence. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the second respondent. 7. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court can be sustained? 2) Whether the sentence imposed is excessive or unduly harsh? 8. The complainant as PW1 testified in terms of his complaint. Nothing was brought out during his cross- examination to discredit his evidence. Further, his evidence CRRP 1901/2004 4 is supported by Exts.P1 to P9. 9. The case of the accused was that he had no transaction with the complainant, that he issued a signed blank cheque to DW1 as security in connection with some other transaction, which was misplaced by him and misusing the said cheque the complainant created Ext.P1. Except interested version of DW1, there is no other evidence to substantiate the case of the accused. The version of DW1 that the accused handed over the signed blank cheque to him, which was misplaced appears to be unbelievable. Both the courts below rejected his evidence. I find no reason to come to a different conclusion. 10. That apart, as the accused had admitted the execution of Ext.P1 cheque, presumption as envisaged under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused was not able to rebut the above presumption satisfactorily. For all these reasons, I hold that the trial court as well as the lower appellate court was right in accepting the evidence of PW1 and convicting the accused under section 138 of the CRRP 1901/2004 5 Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner thereunder. 11. As regards the sentence, the accused has already deposited Rs.16,500/- before the trial court which was ordered as compensation by the lower appellate court. He has produced a certificate to that effect. Further the transaction is of the year 1999. Taking into consideration all these aspects, I feel that sentence of imprisonment till the rising of court and a compensation of Rs.16,500/- to the complainant would meet the ends of justice. 12. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act which was confirmed in appeal by the lower appellate court is upheld. The sentence is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.16,500/- to the complainant, in default to undergo simple imprisonment for three months. The amount already deposited before the trial court by the accused shall be adjusted towards the CRRP 1901/2004 6 compensation ordered. His bail bonds are cancelled. The accused/2nd respondent shall surrender before the trial court on or before December 15, 2011 to suffer the sentence. P. Q. BARKATH ALI, JUDGE. mn.