IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 2659 of 2004(B) ------------------------------- ( CC.NO.271/1995 OF JFCM, THIRUVALLA CRL.APPEAL NO.39/1998 OF ADDL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT I, PATHANAMTHITTA) REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.T.VISWANATHAN, KOCHUPULIMOOTTIL HOUSE, NEERETTUPURAM MURI, THALAVADI VILLAGE. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE --------------------------------------------- 1. M.J.MATHEW, MANAKKU SHERLY SADHANAM, NEDUMPRAM MURI, NEDUMPRAM MURI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.HARIDAS FOR R1 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2659 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2010 ORDER Revision petitioner is the accused in C.C.No.271/1995 on the file of Judicial First Class Magistrate Court, Thiruvalla and appellant in Crl.Appeal No.39/1998 of Addl. District & Sessions Court (Adhoc) Fast Track Court I, Pathanamthitta. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months by the trial court by judgment dated February 27, 1998. On appeal by the accused, the lower appellate court by judgment dated July 27, 2004 confirmed his conviction, but modified the sentence to simple imprisonment for one month and to pay a compensation of Rs. 72,500/- to the complainant, in default to undergo simple imprisonment for four months. The accused has now 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 accused borrowed Rs. 36,250/- from the complainant and to Crl.R.P.No.2659/04 2 discharge that liability, he has issued the cheque Ext.P1 dated November 10, 1994 drawn on the Kavumbhagam Branch of Federal Bank which when presented for collection was returned with the endorsement “payment stopped by the drawer” and that in spite of notice issued, 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 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 P5 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. DW1 was examined on his side and Exts.D1 to D6 were marked. 4. The Trial court 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 by the accused, the lower appellate court confirmed his conviction, but modified his sentence as mentioned Crl.R.P.No.2659/04 3 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 counsel for the revision first respondent/complainant. 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. The complainant as PW1 testified in a convincing manner before the trial court regarding the transaction in terms of the complaint before the Trial court. Pws 2 and 3 are the Bank Managers. They supported his case. Nothing was brought out during their cross examination to disbelieve their evidence. Further the evidence of PW1 is supported by Exts.P1 to P5. 8. The case of the accused as suggested during cross examination and as stated by him when questioned under Section 313 Crl.R.P.No.2659/04 4 Cr.P.C. was that he has lost the cheque Etxt.P1 from his possession, that the complainant obtained that cheque and forged the same and created Ext.P1. To substantiate his case, accused examined DW1 to DW3 and produced Exts.D1 to D6. DW1 is PW2, the Manager of Federal Bank, Kavumbhagam branch. He was examined by the accused to prove Ext.D5 intimation sent by him to the bank regarding the losing of the cheque. DW2 is the Head Constable of Edathua Police Station. He was examined to prove Ext.D6, the intimation sent by the accused to the police station. DW3 is the Social worker, who allegedly mediated the dispute between the complainant and the accused. 9. The Trial court as well as the lower appellate court has considered the evidence of DW1 to DW3 and Exts.D1 to D6 and chosen to reject the same. I have gone through their evidence and perused the records. I find no reason to come to a different conclusion. That apart, as the accused has admitted the issuance of cheque Ext.P1, the 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.2659/04 5 effectively. 10. For all these reasons, I am of the view that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of the complainant and rejecting the evidence of the accused and in holding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 11. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for six months which is modified by the lower appellate court to simple imprisonment for one month and to pay a compensation of Rs. 72,500/-. Taking into consideration the fact that the transaction is of the year 1994, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.36,250/- being the cheque amount, in default to undergo simple imprisonment for three months, would meet the ends of justice. 12. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Crl.R.P.No.2659/04 6 Instruments Act is confirmed. The sentence is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 36,250/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for three months. Counsel for the complainant submits that the complainant has filed a Civil Suit- O.S.No.745/1997 before the Munsiff Court, Thiruvalla on the basis of the same cheque which was decreed. Therefore, the compensation awarded in this case will be adjusted towards the decretal amount of the above suit and the complainant can execute the decree for the balance amount. The bail bonds of the accused are cancelled. The accused shall appear before trial court on or before 31/08/2010 to undergo the sentence. Two months time is granted for payment of compensation. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2659/04 7