IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1000 of 2003() ------------------------------ CRA.204/1998 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CC.769/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- C.SUDHAKARAN, S/O. NANU, CHAMBALAN VEEDU, MELMURINGODI P.O., PARAVOOR. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE MATHEWS RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. K.BABU S/O. KRISHNAN NAIR, KOZHAKKEYIL HOUSE, MELMURINGODI P.O., PARAVOOR (WITHIN THE JURISDICTION OF PARAVOOR POLICE STATION) 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1000 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.769/1996 of Judicial First Magistrate Court, Kuthuparamba and appellant in Crl.Appeal No.204/1998 of Sessions Court, Thalassery. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced undergo simple imprisonment three months by the trial court. On appeal , the substantive sentence was reduced to simple imprisonment for ten days and he was directed to pay compensation of Rs. 20,000/- to the complainant. 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 that accused borrowed Rs. 20,000/- from the complainant and to discharge that liability the accused issued the cheque Exts.P1 dated September 16, 1996 drawn on the Paravur brnach of Co-operative Urban Bank Ltd. which when presented for collection was returned Crl.R.P.No.1000/03 Page numbers dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated September 25, 1996, 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 P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 4. The trial court 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. On appeal his conviction was confirmed, but sentence was modified as mentioned above. The accused has now come up in revision challenging his conviction and sentence. Crl.R.P.No.1000/03 Page numbers 5. Heard the counsel for the revision petitioner. Since this is a matter of 2003, notice to first respondent is dispensed with. 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. PWs 1 and 2 were examined and Exts.P1 to P7 were marked on the side of the complainant to prove the guilt of the accused. PW1 is the complainant. PW2 is the Bank Manager. PW1 testified in terms of the complaint before the trial court. 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 PW 2. 8. The case of the accused was that he gave a blank signed cheque to one Jayan from whom he borrowed some amount and that Crl.R.P.No.1000/03 Page numbers misusing that cheque, the complainant has created Ext.P1. No evidence was adduced by the accused to prove his case. That part, as the accused has admitted the execution of Ext.P1 cheque, presumption under Section 118 and 139 of Negotiable Instruments Act is available for the complainant. The accused has failed to rebut the above presumptions effectively. For all these reasons, I am inclined to confirm the findings of both the courts below that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 9. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months which is modified in appeal to simple imprisonment for ten days and the lower appellate court directed the revision petitioner to pay compensation of Rs. 20,000/-. The transaction is of the year 1996. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 25,000/- would meet the ends of justice. Crl.R.P.No.1000/03 Page numbers In the result, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 25,000/-, in default, to undergo simple imprisonment for three months. Fine amount, if realised, shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. One month's time is granted for payment of fine. If any amount is deposited by the accused before the trial court towards fine amount, that shall be adjusted towards the fine imposed. Revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1000/03 Page numbers Crl.R.P.No.1000/03 Page numbers Crl.R.P.No.1000/03 Page numbers P.Q.BARKATH ALI JUDGE sv. 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