IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1235 of 2003() ------------------------------ ST CASE NO.226/1994 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR. CRL.A.331/1997 OF ADDITIONAL SESSIONS COURT (ADHOC-I), THALASSERY. REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- C.P.MOIDEEN S/O.MUHAMMED KUNHI, AGED 38 YEARS, RESIDING AT EZHOME MOOLA, EZHOME AMSOM, NERUVAMBRAM DESOM, P.O. EZHOME, KANNUR DISTRICT BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): COMPLAINANT/FORMAL PARTY --------------------------------------- 1. C.P.ABDUL RAHIMAN ALIAS RAHIM HAJEE, S/O.SULAIMAN, MATTOOL AMSOM DESOM OF KANNUR, P.O. MATTOOL 2. STATE OF KERALA TO BE REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM . ADV. SRI.A.K..ABDUL AZEEZ FOR R1 PUBLIC PROSECUTOR SMT.REKHA C. NAIR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1235 of 2003 ------------------------------------------------------ Dated: DECEMBER 1 , 2009 ORDER The revision petitioner is the accused in ST Case No.226/1994 of Judicial First Class Magistrate Court, Payyannur, and the appellant in Crl.A.331/1997 of Additional Sessions Court (Adhoc-I), Thalassery. He was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months, which is 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 complaint is that the revision petitioner issued the cheque Ext.P1 on December 31, 1993 for Rs.75,000/- drawn on the Cheruthazham Service Co-operative Bank Ltd., Athiyadan Branch, which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P3 dated January 30, 1994, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. The trial court on receipt of the complaint recorded the sworn Crl.R.P.1235/2003 2 statement of the complainant/PW.1 and took cognizance of the case. The accused on appearance before the lower court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P5 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C., the accused submitted that the cheque was issued as a security when there was an agreement between the complainant and the accused regarding the partition of family property and that as the partition deed was not registered, the cheque was issued without consideration. On the side of the accused Ext.D1 was produced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. 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 under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Crl.R.P.1235/2003 3 Point No.I 7. PW.1 was examined and Exts.P1 to P5 were marked on the side of the complainant to prove the guilt of the accused. PW.1 testified in terms of the complaint. Nothing was brought out during his cross-examination to discredit his evidence. His evidence is supported by Exts.P1 to P5. 8. The specific case of the accused before the trial court was that Ext.P1 cheque was issued as security and there was an agreement between the parties as Extg.D1, and that as the partition deed was not registered as mentioned in Ext.D1, the cheque is without consideration. Both the courts below have found that the cheque Ext.P1 is supported by consideration. On going through the evidence of PW.1 I find no reason to come to a different conclusion. 9. Learned counsel for the revision petitioner argued that in Ext.D1 it is recited that the entire amount due under Ext.P1 was received and that therefore Ext.P1 cheque was without any consideration. But no such contention was raised either before the trial court or before the lower appellate court. Even when the accused was questioned under sec.313 Cr.P.C. he has not stated that he has paid the entire amount due under the cheque Ext.P1. Therefore I am not inclined to accept the above contention raised by the revision petitioner. Counsel for the revision petitioner cited the following Crl.R.P.1235/2003 4 decisions in support of his contention:- 1. Kumar Exports v. Sharma Carpets - 2009(1) KLT 197 (SC) 2. Narayana Menon v. State of Kerala - 2006(3) KLT 404 (SC) 3. Joseph Sartho v. Gopinathan Nair - 2008 (4) KLT 509. 4. Sudha Beevi v. State of Kerala - 2004(2) KLT 746 The above decisions do not apply to the facts of the present case. In the above decisions the accused has already paid the amount due under the cheque and therefore it was found that the cheque is without consideration. But in the present case before the trial court as well as the lower appellate court, the accused has no such contention. 10. For all these reasons I hold that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW.1 and coming to the conclusion that Ext.P1 cheque was supported by consideration which, when presented for encashment, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P4, the revision petitioner did not repay the amount which is an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act. Point No.II 11. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months. The transaction is of the Crl.R.P.1235/2003 5 year 1993 and a partition suit is still pending between the parties. Taking into consideration all these aspects I feel that a sentence of 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 pay a fine of Rs.75,000/- (seventy five thousand), in default to undergo simple imprisonment for six months. The fine amount, if realised, shall be paid to the complainant as compensation as provided under sec.357(1) Cr.P.C. His bail bonds are cancelled. Learned counsel for the revision petitioner submits that the revision petitioner has already deposited the entire amount due under the cheque before the trial court. If that be so, the revision 1st respondent/complainant is entitled to withdraw that amount. P.Q. BARKATH ALI, JUDGE mt/-