IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 Crl.Rev.Pet.No. 912 of 2002() ----------------------------- CRA.148/1999 of SESSIONS COURT, KOZHIKOE CC.229/1994 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER(S): REVN.PETITIONER/RESPONDENT/COMPLAINANT: ------------------------------------------------------------ SUNDER RAJ, S/O. P.N. NAMBIAR, C.C. COMPOUND, NADAKKAVU, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT/APPELLANT/ACCUSED & STATE: ---------------------------------------------------- 1. P. VALSAN, S/O. APPU, POOVATHINGAL HOUSE, MALAPARAMBA, KOZHIKODE. 2. STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.M.P.MOHAMMED ASLAM FOR R1 PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.912 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of July, 2011 ORDER Revision petitioner is the complainant in C.C.No.229/1994 on the file of Judicial First Class Magistrate Court IV, Kozhikode and first respondent in Crl.Appeal No.148/1999 of Sessions Court, Kozhikode. The learned Magistrate by judgment dated February 22, 1999 convicted the first respondent/accused under Section 138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs.80,000/-, in default to undergo simple imprisonment for six months. Out of the fine amount realised, Rs.70,000/- was ordered to be paid to the revision petitioner/complainant as compensation. On appeal by the accused, the learned Sessions Judge by judgment dated June 29, 2001 confirmed his conviction, but reduced the fine amount to Rs.5,000/- in default to undergo simple imprisonment for one month. The fine amount was ordered to be paid to the revision petitioner/complainant. The complainant has now come up in revision challenging the said judgment of the lower appellate court reducing the sentence. Crl.R.P.No.912/2002 2 2. The case of the revision petitioner/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that the accused borrowed Rs. 70,000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated December 7, 1993 drawn on the Calicut Branch of State Bank of India which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated December 23, 1993, 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 P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. Ext.D1 was marked on his side. Crl.R.P.No.912/2002 3 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. On appeal by the accused, the lower appellate court confirmed his conviction, but reduced the sentence as mentioned above. The complainant has now come up in revision challenging the said judgment of the lower appellate court reducing the sentence of the accused. 5. Heard the counsel for the revision petitioner/complainant and the counsel for the respondents. 6. The following points arise for consideration : 1) Whether the judgment of the lower appellate court reducing the sentence of the accused can be sustained ? If not, what is the proper sentence to be awarded ? 7. The cheque is for Rs.70,000/-. The execution of the cheque by the accused and the amount due under the cheque are not seriously challenged in this revision. Further, accused has not filed any revision against the judgment of the lower appellate court. That being so, I am Crl.R.P.No.912/2002 4 of the view that the lower appellate court is not justified in reducing the sentence. In the circumstances of the case, I feel that a sentence of imprisonment till the rising of court and to pay a compensation of Rs.80,000/- to the revision petitioner/complainant with default sentence would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the first respondent/accused under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is reduced by the lower appellate Court is set aside. The first respondent/accused is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 80,000/- to the appellant/complainant, in default to undergo simple imprisonment for two months. Two month's time is granted for payment of compensation. The first respondent/accused shall surrender before the trial court on or before 25/07/2011 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.912/2002 5