IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 307 of 2002() ----------------------------- CRA.169/2001 of ADDL. SESSIONS COURT, ALAPPUZHA CC.446/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- G.PARAMESWARAN, S/O.GOVINDAN, CHANDRA BHAVANAM, WARD NO.8, VAYALAR PANCHAYATH, CHERTHALA. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------- 1. K.RADHAKRISHNAN, DWARAKA, CHERTHALA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.GOPAKUMAR (TVM) FOR R1 SRI.C.RASHEED FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.307 of 2002 ------------------------------------------------------ Dated: DECEMBER 4, 2009 ORDER The revision petitioner is the accused in C.C.No.446/1997 of the Judicial First Class Magistrate Court-I, Cherthala, and the appellant in Crl.A.No.169/2001 of Additional Sessions Court, Alappuzha. He was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months by the trial court. On appeal the conviction and sentence of the accused were confirmed. The lower appellate court has directed the accused to pay a compensation of Rs.1,71,000/- to the complainant. The accused has now 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 revealed from the complaint is that in a car transaction for the amount due to the complainant, the accused issued the cheque Ext.P1 dated 10.4.1997 for Rs.1,00,000/- and another cheque Ext.P2 for Rs.71,000/- in favour of the complainant drawn on the Federal Bank, Cherthala Branch, which when presented for collection were 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.P5 dated April 11, 1997, the accused did not repay the amount, which is an offence punishable under CRL. R.P.307 of 2002 2 sec.138 of the Negotiable Instruments Act. 3. 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. PWs.1 and 2 were examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused stated that he has given the cheques Exts.P1 and P2 to the complainant and the complainant had agreed that he will not present the cheques for collection and also that the car sold by the complainant to him did not worth more than Rs.One lakh. On the side of the accused Dws.1 to 4 were examined. 4. The trial court on an appreciation of the evidence found the accused/revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid which was confirmed in appeal. The accused has now up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner 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? CRL. R.P.307 of 2002 3 II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The complainant was examined as PW.1 and the bank manager as PW.2 before the trial court and Exts.P1 to P9 were marked to prove his case. I have gone through the evidence of PW.1. Nothing was brought out during his cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P9 and the evidence of PW.2, the bank manager. 8. The case of the accused when questioned under sec.313 Cr.P.C. was that he issued the cheques Exts.P1 and P2 as PW.1 undertook that he will not present the cheques for collection in the bank. He examined Dws.1 to 4 to prove his case. Both the courts below have rejected the evidence of Dws.1 to 4. I find no reason to come to a different conclusion. 9. For all these reasons I hold that both the courts below are perfectly justified in accepting the evidence of PW.1 and in coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore his conviction under sec.138 of the Negotiable Instruments Act is confirmed. Point No. II 10. As regards the sentence, he was sentenced to undergo simple imprisonment for three months by the trial court. On appeal his CRL. R.P.307 of 2002 4 sentence was confirmed and he was further directed to pay a compensation of Rs.1,71,000/-. Counsel for the revision petitioner submits that the revision petitioner is aged more than 80 years. Taking into consideration all these aspects I feel that a sentence of imprisonment till the rising of court and a fine of Rs.1,71,000/- 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 the accused is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs.1,71,000/-, in default to undergo simple imprisonment for three months. Six months time is granted for payment of fine. The fine amount, if realised, shall be paid to PW.1/complainant as compensation under sec.357(1) of Cr.P.C.. His bail bonds are cancelled. The accused shall surrender before the trial court on or before 30.12.2009 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.2283/2002 Dismissed. 4.12.2009. P.Q. BARKATH ALI, JUDGE mt/-