IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Crl.Rev.Pet.No. 2549 of 2004(C) ------------------------------- CRA.49/2000 of I ADDL. SESSIONS COURT, KOLLAM CC.236/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- S.CHANDRADAS, S/O. SREEDHARA VAIDYAR, THENGUVILA VEEDU, KALLUVILA KSHETRAM, KOLIMANOOR P.O., THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.P.K.MUHAMMED SRI.S.VIJI RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. RAJAPRASAD, VILLOOR KALLUVILA PUTHENVEEDU, PERUMPUZHA, THAZHEM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.S.MANU (PUNUKKONNOOR) FOR R1 SRI.P.SREEKUMAR FOR R1 PUBLIC PROSECUTOR SRI.P.K.MUHAMMED PUZHAKKA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2549 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2010 ORDER Challenge in this appeal is to the judgment of the Judicial First Class Magistrate Court I, Kollam in C.C.No.236/1996 dated March 31, 2000 convicting the revision petitioner under Section 138 of Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months and to pay a fine of Rs. 3,000/- in default to undergo simple imprisonment for one month. He was also directed to pay a compensation of Rs. 35,000/- to the complainant. On appeal by the accused, the First Addl. Sessions Judge,Kollam in Crl.Appeal No.49/2000 by judgment dated July 31, 2004 confirmed the conviction of the revision petitioner, but modified the sentence to the effect that he was sentenced to undergo imprisonment for one day and to pay a compensation of Rs. 35,000/- to the complainant, in default to undergo simple imprisonment for three months. 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 Crl.R.P.No.2549/2004 2 that accused borrowed Rs.30,000/- from the complainant from his house on October 9, 1995 and to discharge that liability, he issued the cheque Ext.P1 on that day 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.P3 dated November 9, 1995, 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 to 3 were examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused submitted that the cheque was issued on behalf of one Sunil Kumar in a transaction between the complainant and Sunil Kumar in which the accused was a mediator and the said cheque was misused by the complainant and created this case. On the side of the accused DW1 was examined and Exts.D1 and D2 were marked. Crl.R.P.No.2549/2004 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, the lower appellate court confirmed his conviction, but modified the sentence has mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the counsel for the revision first respondent. 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. Complainant as PW1 and the two Bank Managers as Pws 2 and 3 were examined and Exts.P1 to P7 were marked on the side of the complainant to prove the guilt of the accused. I have gone through the Crl.R.P.No.2549/2004 4 evidence of PW1. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P7. 8. The specific case of the accused as suggested during cross examination and as stated by him when questioned under Section 313 Cr.P.C. was that one Sunil Kumar has borrowed amount from the complainant and in that transaction between Sunil Kumar and complainant, accused was the mediator and in that mediation, accused has issued the cheque which was misused by the complainant and filed this complaint. In an attempt to prove his case, accused has examined DW1 who was allegedly present when the accused issued the cheque for the amount due from Sunil Kumar. The Trial court has discussed the evidence of DW1 in detail and rejected the case of the accused. I have gone through the evidence of DW1 and Exts.D1 and D2. I find no reason to come to a different conclusion. That apart, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. Crl.R.P.No.2549/2004 5 9. For all these reasons, I hold that the trial court as well as the appellate court is perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act and convicting him thereunder. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for three months and to pay a fine of Rs. 3,000/-. He was also directed to pay a compensation of Rs.35,000/-. On appeal, the lower appellate court reduced the sentence of imprisonment to one day and directed him to pay a compensation of Rs. 35,000/-. Taking into consideration the fact that the transaction is of year 1995, I feel that a sentence of imprisonment till the rising of court and to pay a compensation of Rs.40,000/- to PW1, in default to undergo simple imprisonment for three months would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Crl.R.P.No.2549/2004 6 Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 40,000/- to PW1, the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for three months. Two month's time is granted for payment of compensation. The amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation amount awarded. The complainant is permitted to withdraw that amount. The revision petitioner shall surrender before the trial court on or before 15/08/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2549/2004 7