IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 650 of 2002() ----------------------------- CC.173/1996 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR CRA.171/1999 of III ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.K.MOHANAN, S/O.KRISHNAN, KONIKKARA HOUSE, THALAMANIKKARA DESOM, THALORE,THRISSUR. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------- 1. PERPETUAL CHITTIES AND HIRE PURCHASE (P) LTD., THRISSUR, REPRESENTED BY MANAGING DIRECTOR, M.D.VINCENT,S/O.DEVASSI, MANJOORAN HOUSE, V/630,CHETTUPUZHA,THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BYADV. SRI.K.PADMANABHAN SRI.M.V.MATHEW R2 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 650 of 2002 ------------------------------------------------------ Dated: DECEMBER 9, 2009 ORDER The revision petitioner is the accused in C.C. No.173/1996 of Chief Judicial Magistrate Court, Thrissur, and the appellant in Crl.A.171/1999 of III Additional Sessions Court (Adhoc) Fast Track Court-I, Thrissur. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.80,000/-, in default to undergo simple imprisonment for another one month by the trial court. Out of the fine amount, if realised, Rs.72,000/- was ordered to be paid to the complainant as compensation. The conviction and sentence of the accused was confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint in brief is that towards the amount due under a chitty transaction, the accused issued the cheque Ext.P2 dated January 3, 1996 for Rs.71,187/- drawn on the Thrissur High Road Branch of the South Indian Bank, which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of CRL. R.P. 650 of 2002 2 the revision petitioner in the bank and that in spite of the notice Ext.P5 dated January 18, 1996, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the trial court recorded the sworn statement of the PW.1, the Managing Director of the complainant company, and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 to 3 were examined and Exts.P1 to P11 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the revision 1st respondent. CRL. R.P. 650 of 2002 3 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. PW.1, the Managing Director of the complainant company, testified in terms of the complaint and marked Exts.P1 to P11 on the side of the complainant. I have gone through the evidence of PW.1. No serious discrepancies are pointed out in his cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P11 and the evidence of PWs. 2 and 3, Bank Managers. 8. The case of the accused was that Ext.P2 cheque was issued only as security and that therefore the same was without consideration. There is no substance in the above contention. No evidence was adduced by the accused to prove the same. That apart, in Ext.P10 letter the accused has admitted the issuance of the cheque. That being so, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available for the complainant. The accused did not adduce any evidence to rebut the above presumption. 9. For all these reasons accepting the evidence of PW.1, I CRL. R.P. 650 of 2002 4 hold that the trial court as well as the lower appellate court is justified in holding that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. The conviction of the accused under sec.138 of the Negotiable Instruments Act is confirmed. Point No.II 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for two months and to pay a fine of Rs.80,000/-, in default to undergo simple imprisonment for another one month. Out of the fine amount, if realised, Rs.72,000/- was ordered to be paid to the complainant as compensation which is confirmed in appeal. 11. The transaction is of the year 1996. Taking into consideration that aspect I feel that a sentence of imprisonment till the rising of court and to pay a fine of Rs.75,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. 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.75,000/-, in default to undergo simple CRL. R.P. 650 of 2002 5 imprisonment for five months. The fine amount, if realised, shall be paid to the complainant as compensation as provided under sec.357(1) of Cr.P.C. If any amount is deposited by the revision petitioner before the trial court, it shall be adjusted towards the fine amount. His bail bonds are cancelled. Two months time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on or before 30.12.2009 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.3984/2002 Dismissed. 9.12.2009. P.Q. BARKATH ALI, JUDGE mt/-