IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 370 of 2003() ----------------------------- CRA.48/2000 of ADDL.SESSIONS COURT, KOTTAYAM CC.629/1997 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- MARIYAKUTTY JOHN, KAITHACKEL HOUSE, KALATHOOR P.O., KOTTAYAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. N.K.SURESH KUMAR, BHARGAVI NILAYAM, VEMPALLY P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.BABU KUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SRI AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.370 of 2003 ------------------------------------------------------ Dated: DECEMBER 21, 2009 ORDER The revision petitioner is the accused in C.C. No.629/1997 of Judicial First Class Magistrate Court, Pala, and the appellant in Crl.A.48/2000 of Additional Sessions Court, Kottayam. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.35,000/- to the complainant as provided under sec.357(3) Cr.P.C., in default to undergo simple imprisonment for six months, which is confirmed in appeal. The accused has now come up in revision challenging her conviction and sentence. 2. On receipt of the complaint the learned magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the incriminating evidence. No defence evidence was adduced. 3. The learned magistrate on an appreciation of evidence found the revision petitioner/accused guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted her thereunder Crl.R.P. 370/03 2 and sentenced her as aforesaid, which is confirmed in appeal. The accused has now come up in revision challenging her conviction and sentence. 4. Heard the counsel for the revision petitioner and the revision 1st respondent/complainant. 5. 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? Point No.I 6. PW.1 was examined and Exts.P1 to P8 were marked on the side of the complainant to prove his case before the trial court. PW.1/complainant testified in terms of the complaint before the trial court. Nothing was brought out during his cross-examination to discredit his evidence. 7. When questioned under sec.313 Cr.P.C. by the trial court the accused contended that the notice was issued not within time. There is no substance in the above contention. On a perusal of Exts.P1 to P4 it is seen that notice was issued within time as contemplated under sec.138 of the Negotiable Instruments Act. 8. Another contention raised by the revision petitioner is that the accused borrowed Rs.15,000/- and gave a blank signed cheque Crl.R.P. 370/03 3 which was used by the complainant and created Ext.P1. But no evidence is adduced by the accused to prove the same. 9. For all these reasons I am inclined to hold that both the courts below are justified in accepting the evidence of PW.1 and holding that the accused has committed 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 10. As regards the sentence, the trial court imposed a sentence of imprisonment till the rising of court and to pay a compensation of Rs.35,000/- to the complainant, in default to undergo simple imprisonment for six months, which is confirmed in appeal. I find no reason to reduce the sentence. Therefore confirming the conviction and sentence of the revision petitioner, the revision petition is dismissed. One month time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on or before 8.1.2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.1286 of 2003 Dismissed. 17.12.2009 P.Q. BARKATH ALI, JUDGE Crl.R.P. 370/03 4 mt/-