IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.Rev.Pet.No. 1087 of 2003() --------------------------------------- CRA.149/2002 of SESSIONS COURT, THRISSUR ST.2621/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR ............................................ REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------- BABU, S/O. KAREPARAMBIL SANKARAN, PERINGOTTUKARA DESOM, KIZHAKUMURI, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): COMPLAINANT AND STATE: ---------------------------------------------------------------- 1. VINAYAKUMAR, S/O. KUMARAN, VALEKKATTU HOUSE, PERINGOTTUKARA DESOM, KIZHAKUMURI, THRISSUR TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.T.M.CHANDRAN R2 BY PUBLIC PROSECUTOR SMT. REKHA.C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. P.Q. BARKATH ALI, J ---------------------------- Crl.R.P. No.1087 of 2003 ---------------------------------------- Dated this the 20th day of November, 2009 O R D E R Revision petitioner is the accused in S.T. Case No.2621/1999 of Judicial I Class Magistrate Court II, Thrissur and appellant in Crl. Appeal No.149/2002 of Sessions Court, Thrissur. He was convicted under section 138 of Negotiable Instrument Act and was sentenced to undergo simple imprisonment of 3 months and to pay a compensation of Rs.10,000/- to the complainant, in default, to undergo simple imprisonment for three months. The conviction under section 138 of Negotiable Instrument Act is confirmed in appeal, but sentence is modified to the effect that he was sentenced to undergo simple imprisonment for one month and to pay a compensation of Rs.1,35,000/- to the complainant, in default, simple imprisonment of three months. Now the accused has come up in revision challenging his conviction and sentence. 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 that the accused had borrowed Rs.1,25,000/- from CRRP. No.1087/03 2 the complainant, promising to repay the same, that When demanded, the accused issued a cheque, Ext.P1 dated October 21, 1998, drawn on Bank of Baroda, Madras Choolaimedu branch, which when presented for collection, was returned for want of insufficiency of fund in the account of the accused and that in spite of notices, Ext.P4 and Ext.P6, dated November 25 and November 26, 1998 respectively, the accused refused to pay the amount which is an offence punishable under section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded sworn statement of PW1 and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to the charge under section 138 of Negotiable Instruments Act. PW1 was examined and Ext.P1 to P7 were marked on the side of the complainant. When questioned under section 313 of Cr.P.C. the accused denied the entire transaction and submitted that he borrowed only Rs.50,000/-. On the side of the accused Ext.D1 was marked. 4. The learned Magistrate on an appreciation of evidence, found the revision petitioner guilty of the offence punishable under CRRP. No.1087/03 3 section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal conviction of the accused under section 138 of Negotiable Instruments Act was confirmed. But the sentence was modified as found above. Now the accused has come up in revision challenging the conviction and sentence. 5. Heard the counsel for the revision petitioner and the revision first respondent. 6. The following points arise for consideration: 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instrument Act 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. The complainant was examined as PW1 and produced Ext.P1 to P7 before the trial court. PW1 testified in terms of the complaint. Nothing was brought out during cross examination to CRRP. No.1087/03 4 discredit his evidence. Further his evidence is supported by Ext.P1 to P7. 8. The case of the accused was that he borrowed only Rs.50,000/- from the complainant and that he has paid Rs. 42,000/- towards interest and subsequently Rs. 50,000/-; that the complainant has obtained four blank cheques and 4 signed blank papers and misused one of the cheques and created Ext.P1. No evidence was adduced by the accused to prove his case. He produced Ext.D1 Copy of the complaint, in O.S.489/2001 of Sub Court Thrissur showing that the complainant has filed a Civil Suit for the amount payable under Ext.P1. It does not in any way help him to prove his case. 9. For all these reasons, I hold that trial court as well as lower appellate court were justified in accepting the evidence of PW1 and finding that the accused has issued Ext.P1, cheque to discharge his liability towards the complainant which, when presented for collection was returned dishonoured for want of sufficiency of fund in the account of the accused, and that in spite of notices, the accused has not repaid the amount which is an offence punishable CRRP. No.1087/03 5 under section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the accused under section 138 of Negotiable Instruments Act. Point No.2 10. As regards sentence, the trial court imposed a sentence to under go simple imprisonment of three months and to pay a compensation of Rs.1,25,000/- to the complainant in default, to undergo simple imprisonment for a further period of three months. On appeal the conviction of the appellant was confirmed. The sentence was modified to the effect that the accused was sentenced to under go simple imprisonment for one month ad to pay compensation of Rs.1,35,000/-, in default, to undergo simple imprisonment for three months. The transaction is of the year 1998. Therefore I feel that imprisonment till raising of court and a fine of Rs.1,25,000/-, in default to undergo simple imprisonment of three months would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner by both the courts below under section 138 of Negotiable Instrument Act is confirmed. The CRRP. No.1087/03 6 sentence is modified to the effect that the revision petitioner is sentenced to undergo simple imprisonment till rising of court and to pay a fine of Rs.1,25,000/-, in default to undergo simple imprisonment of three months. Fine amount if realised shall be paid to the complainant as compensation as provided under section 357(1) of Cr.P.C. Any amount deposited by the accused before the trial court, shall be adjusted towards compensation. The complainant will be entitled to withdraw that amount. His bail bonds are cancelled. The accused shall surrender before the trial court on or before 15.12.2009 to receive the sentence. Two months time is granted for payment of fine amount. His bail bonds are cancelled. (P.Q. BARKATH ALI, JUDGE) sou. CRRP. No.1087/03 7 P.Q. BARKATH ALI, J Crl.R.P No.1087of 2003 ORDER 20.11.2009