IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.Rev.Pet.No. 835 of 2002() ----------------------------- CRA.139/1996 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.551/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... REVN. PETITIONER(S): APPELLANT ------------------------------ K.JANARDHANAN,OWNER,LORD KRISHNA BUS, PAZHAVILA PUTHEN VEEDU, NJARAKKATTUVILA, NEDUMPARAMBU. BY ADV. SRI.M.BALAGOVINDAN SRI.P.M.JOSEPH RESPONDENT(S): RESPONDENTS -------------------------- 1. KESAVAN SASI, VASANTHA VILLA,KOTIYODE, CHITATTINKARA DESOM,AVANAVANCHERRY VILLAGE. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.K.J.MUHAMMED ANZAR SRI.J.JAYAKUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. ------------------------------------- CRL.R.P.835 OF 2002 ------------------------------------- Dated this the 14th day of December, 2009 ORDER The revision petitioner is the accused in C.C.No.551/1994 of the Judicial First Class Magistrate Court-I, Attingal, and the appellant in Crl.A.No.139/1996 of First Additional Sessions Court, Thiruvananthapuram. He was convicted under Section 138 of the Negotiable Instruments Act and he was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a further period of one month. On appeal the learned Sessions Judge confirmed the conviction and sentence of the revision petitioner. The accused has come up in revision challenging his conviction and sentence. 2. The case of the complainant/ first respondent is that the accused borrowed a sum of Rs.50,000/- from the complainant and to discharge that liability he issued the cheque Exhibit .P1 dated March 15, 1994 for Rs.50,000/- drawn on the Alamcode branch of Bank of Baroda, which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Exhibit . P5 dated May 17, 1994, the accused did not repay the amount, which is an offence punishable under Section 138 of the Negotiable Instruments Act. 2 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 the charge under Section 138 of the 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 Cr.P.C. the accused admitted that he had issued Exhibit . P1 cheque, but stated that during 1992 when he borrowed some amount from the complainant it was given as a blank signed cheque. DWs. 1 and 2 were examined on the side of the accused. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced to him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 6. Heard the learned counsel for the revision petitioner and the revision first respondent complainant. 7. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under Section 3 138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 8. Pws. 1 and 2 were examined and Exts. P1 to P7 were marked on the side of the complainant before the trial court. PW1 the complainant testified in terms of the complaint. No serious discrepancies or inconsistencies were pointed out in his evidence. Further his evidence is supported by Exts.P1 to P7 and that of PW2 the Bank Manager. 9. The case of the revision petitioner when questioned under Sec.313 Cr.P.C. by the trial court was that he borrowed some amount from the complainant for which he issued a blank signed cheque which was misused by the complainant and created Exhibit .P1. He further stated that he has already repaid the amount borrowed by him by the complainant. An attempt was made by the accused by examining DW1 and DW2 to prove his case. DW1 is the wife of accused. She does not know anything about the transaction in question. DW2 is one Muraleedharan. He would only say that accused borrowed Rs.25,000/- from PW1 for which accused issued a cheque. There is nothing to show that the said transaction has 4 anything to do with the present case. Both the courts below have rejected the evidence of Dws.1 and 2, I find no reason to come to a different conclusion. 10. That apart the accused has admitted execution of Exhibit . P1 cheque. Therefore, the presumption under Section 118 and 139 of Negotiable Instruments Act is available for the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. 11. For all these reasons I hold that the trial court as well as the Lower Appellate Court is perfectly justified in accepting the evidence of PW1 and coming to the conclusion that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act. Point No.II 12. Regarding the sentence, the trial court has imposed a sentence of simple imprisonment for three months and to pay a fine of Rs.5,000/-, which is confirmed in appeal. The transaction is of the year 1994. Therefore, I feel that sentence of imprisonment till the 5 rising of court and to pay a fine of Rs.70,000/- would meet the ends of justice. 13. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs.70,000/-, in default to undergo simple imprisonment for six months. Out of the fine amount, if realised Rs.60,000/- shall be paid to the complainant/PW1 as compensation. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on 7.1.2010 to receive the sentence. P.Q.BARKATH ALI, JUDGE cms 6 P.Q.BARKATH ALI, J. ------------------------------- CRL.R.P.835 OF 2002 ------------------------------- ORDER 14-12-2009