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. 1068 of 2004(C) ------------------------------ CRA.317/2003 of ADDL.SESSIONS COURT (SPL.COURT), KOTTAYAM CC.539/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.P.RAJAN, S/O. PAPPAN, PURAYIDATHIL HOUSE, MATTAPPALLY MUKKOOTTUTHARA P.O ERUMELY, KOTTAYAM. BY ADV. SRI.K.S.MOHAMED HASHIM SRI.SURIN GEORGE IPE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------- 1. C.P.S. PILLAI, S/O. PARAMESWARAN PILLAI, CHAPPAMATTOM HOUSE, PONKUNNAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.I.ABDUL SALAM FOR R1 R2 BY PUBLIC PROSECUTOR SRI SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1068 of 2004 ------------------------------------------------------ Dated: SEPTEMBER 28, 2010 ORDER The challenge in this revision is to the judgment of the JFCM Court-II, Kanjirappally, in C.C.No.539/2000 convicting the revision petitioner/accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months and to pay a compensation of Rs.34000/- which is modified in appeal by the Addl. Sessions Judge (Spl.), Kottayam, in Crl.A.317/2003 by judgment dated December 31, 2003 to the effect that his substantive sentence is reduced to simple imprisonment for one month after retaining the order of payment of compensation. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the Magistrate and as stated in the complaint was that the accused borrowed Rs.34000/- from him during December 1999 and to discharge that liability he issued the cheque Ext.P1 dated June 6, 2000 which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P4 dated July 28, 2000, the accused did not repay the amount, which is an offence punishable under sec.138 of the CRL. R.P. 1068 of 2004 2 Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the PW.1/complainant and took cognizance of the offence. On appearance before the Magistrate, the accused pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. The complainant was examined as PW.1 and Exts.P1 to P8(series) 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. On an appreciation of evidence the learned Magistrate found that the accused has committed an 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, but modified the sentence as found above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the revision 1st respondent/complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner by the CRL. R.P. 1068 of 2004 3 trial court under sec.138 of the Negotiable Instruments Act, which is confirmed in appeal, can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? POINT NO.I 7. The revision 1st respondent/complainant as PW.1, testified in terms of the complaint before the trial court. Nothing was brought out in cross-examination to discredit his evidence. 8. The case of the revision petitioner/accused as suggested by him during cross-examination and also when questioned under Sec.313 Cr.P.C. was that Ext.P1 cheque was given as a blank cheque as security which was misused by PW.1 to create this case. But no evidence was adduced by him to prove his case. That apart, the accused admitted the execution of the cheque Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. Therefore I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of the complainant and coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore the conviction of the accused under sec. 138 of the Negotiable CRL. R.P. 1068 of 2004 4 Instruments Act is confirmed. POINT No.II 9. As regards the sentence, the learned Magistrate imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs.34000/-. On appeal the lower appellate court modified the substantive sentence to simple imprisonment for one month. The direction of the trial court to pay compensation is retained in appeal. The transaction is of the year 2000. Counsel for the revision petitioner/accused submits that the accused is now without any job. Taking into consideration all these aspects, I feel that imprisonment till the rising of court and a fine of Rs.40,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. 10. In the result, the revision is allowed in part. The conviction of the revision petitioner/accused under Sec.138 of the Negotiable Instruments Act which is upheld by the lower appellate court is hereby confirmed. He is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.40,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to the revision 1st respondent/complainant as compensation as provided under Sec.357 CRL. R.P. 1068 of 2004 5 (1) Cr.P.C. Three months time is granted for payment of fine. His bail bonds are cancelled. The revision petitioner/accused shall surrender before the trial court on or before October 28, 2010 to suffer the sentence. The Crl.R.P. is disposed of as found above. P.Q. BARKATH ALI, JUDGE mt/-