IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 1878 of 2005() ------------------------------ CRA.646/2003 of SESSIONS COURT, KOZHIKODE CC.381/2000 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BINOY JOSEPH, S/O.JOSEPH, KALAMPLINAL HOUSE, MATHA AUTOMOBILES, IRIKKUR ROAD, IRITTY. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------- 1. M/S.GLOBAL TRADERS, P.O.NORTH BEYPORE, CALICUT-15, REP. BY ITS POWR OF ATTORNEY HOLDER K.K.PRAMOD KUMAR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.DEVAN RAMACHANDRAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.A.No.12898/2005 in Crl.R.P.No.1878/2005 Dismissed. 28-09-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1878 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of September, 2010 ORDER Challenge in this revision is to the judgment of Judicial First Class Magistrate III, Kozhikode dated October 27, 2003 in C.C.No.381/2000 convicting the revision petitioner under Section 138 of Negotiable Instruments Act and sentencing him to undergo simple imprisonment for one month and to pay a fine of Rs. 4000/-, in default to undergo simple imprisonment for 15 days which is confirmed in appeal by the Sessions Court, Kozhikode in Crl.Appeal No.646/2003 by judgment dated April 27, 2005. 2. The case of the revision first respondent/complainant firm as testified by its power of attorney holder PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 4,000/- from him and to discharge that liability, he issued the cheque Ext.P2 dated September 5, 1998 which when presented for collection was returned dishounoured for want of sufficiency of funds in the account Crl.R.P.No.1878/2005 2 of the accused in the bank and that in spite of notice Ext.P5 dated February 5, 1999, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. Complainant is M/s.Global Traders represented by its power of attorney holder. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the power of attorney holder 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. Power of attorney holder of the complainant was examined as PW 1 and Exts.P1 to P9 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. Accused himself was examined as DW1 and Exts.D1 and D2 were marked on his side. 4. The learned Magistrate 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 which is confirmed in appeal. The Crl.R.P.No.1878/2005 3 accused has now come up in revision challenging his conviction and sentence. 5. When the revision petition came up for hearing today, counsel for the revision petitioner submitted that he is prepared to pay the amount due to the complainant and that he has already deposited Rs. 5,000/- before the trial court as a condition for suspending the sentence in pursuance of the order passed by this court on August 5, 2005. Therefore, conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. 6. As regards the sentence, the trial court imposed a sentence of simple imprisonment for one month and to pay a fine of Rs. 4,000/-. As the transaction is of the year 2000 and the revision petitioner is prepared to pay the amount to the complainant, I feel that a sentence of fine of Rs. 5,000/- would meet the ends of justice. In the result, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for 15 days. Fine amount, if Crl.R.P.No.1878/2005 4 realised, shall be paid to the complainant as compensation. Rs.5,000/- deposited by the accused before the trial court shall be adjusted towards the fine amount. Complainant is permitted to withdraw that amount. The bail bonds of the accused are cancelled. Revision petition is disposed of as found above. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1878/2005 5