IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 Crl.Rev.Pet.No. 201 of 2001() ----------------------------- CRA.318/1999 of V ADDL.SESSIONS COURT, ERNAKULAM CC.1366/1995 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- P.G.JOSE, VAZHAPILLY VEEDU PUTHUVA, KIDANBOOR, ANGAMALY BY ADV. SRI.SAJI KURIACHAN SRI.C.V.SHAJU RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT --------------- 1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 2. A.K.BABY, NEDUMTHALIL VEEDU CHANDRAPURAM, MANJAPRA, ANGAMALY ADV. SRI.K.N.NARAYANA PILLAI FOR R2 ADV.S.VIDYASAGAR FOR R2 GOVT. PLEADER SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.201 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2009 ORDER Revision petitioner is the accused in C.C.No.1366/1995 of Judicial First Class Magistrate Court, Perumbavoor and appellant in Crl.Appeal No.318/1999 of Sessions Court, Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for one year. On appeal, his conviction was confirmed, but sentence was modified to simple imprisonment for three months and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for a further period of one month. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the second respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 30,000/- from the complainant on January 20, 1995 and to discharge that liability the accused issued the cheque Ext.P1 dated June 20, 1995 drawn on the Angamaly branch of Crl.R.P.No.201/2001 Page numbers Union Bank of India which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated July 17, 1995, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. When the learned Magistrate received the complaint, sworn statement of complainant/ PW1 was recorded and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PW 1 was examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C the accused submitted that his father borrowed Rs. 35,000/- from Sri.K.V.Baby and that at that time a signed blank cheque was entrusted to the said Baby and the complainant has misused the said cheque and created Ext.P1. According to him, he does not know A.K.Baby the complainant, but knew only N.K.Baby. No defence evidence was adduced. 4. The trial court on an appreciation of the evidence found the Crl.R.P.No.201/2001 Page numbers revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal, the conviction was confirmed, but sentence was modified as stated above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments 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 Exts.P1 to P7 were marked on the side of the complainant to prove the guilt of the accused. PW1 testified in terms of the complaint. Nothing was brought out during his cross examination to discredit his evidence. His Crl.R.P.No.201/2001 Page numbers evidence is supported by Exts.P1 to P7. 8. The case of the accused was that his father borrowed Rs. 35,000/- from one N.K.Baby for which he gave a signed blank cheque and that complainant has misused the same and created Ext.P1 and that he did not know the person named A.K.Baby who is shown as the complainant in the complaint. But the complainant as PW1 testified that though his name is shown as A.K.Baby in the complaint, his actual name is N.K.Baby. In Ext.P7 reply notice sent by the accused, accused has admitted the transaction with N.K.Baby who is the complainant. Therefore the above version of the accused that he does not know PW1 cannot be believed. For all these reasons, I hold that both the courts below have rightly accepted the evidence of PW1 and held that Ext.P1 cheque was issued by the accused to discharge his liability towards the complainant and that the same was returned dishonoured for want of sufficiency of funds in the account of the accused in the Bank and that in spite of Ext.P4 notice dated 17/07/1993, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. Therefore the conviction of the revision Crl.R.P.No.201/2001 Page numbers petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 9. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for one year which is modified in appeal to simple imprisonment for three months and a fine of Rs. 5,000/-. The transaction is of the year 1995. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 35,000/- , in default to undergo simple imprisonment for three months would meet the ends of justice. The fine amount if realised shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 35,000/- in default, to undergo simple imprisonment for three months. Fine amount if realised shall be paid to the complainant as Crl.R.P.No.201/2001 Page numbers compensation as provided under Section 357(1) Cr.P.C. The revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. Two month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.201/2001 Page numbers