IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 Crl.Rev.Pet.No. 2771 of 2004(B) ------------------------------- CC.NO.163/2000 OF JFCM, NADAPURAM CRL.A.NO.556/2002 OF SESSIONS COURT, KOZHIKODE REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- V.K. JAYARAMAN NAMBIAR, S/O. KRISHNAN NAMBIAR, KALATHINKUNNUMMAL HOUSE, VELLYADU P.O., VILLIYAPPALLI, VADAKARA TALUK. BY ADV. SRI.R.PARTHASARATHY RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. BABURAJ T., S/O. GOVINDAN, CHEELUPARAMBATH HOUSE, VATTOLI P.O., KAKKATTIL, VATAKARA TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN CRL.M.A.NO.12738/2004 IN CRL.R.P.NO.2771/2004 DISMISSED 20-1-2011 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2771 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of January, 2011 ORDER Revision petitioner is the accused in C.C.No.163/2000 on the file of Judicial First Class Magistrate Court, Nadapuram and appellant in Crl.Appeal No.556/2002 of Sessions Court, Kozhikode. The learned Magistrate by judgment dated October 17, 2002 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months which is confirmed in appeal by the learned Sessions Judge by judgment dated July 27, 2004. 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 the accused borrowed Rs. 1,50,000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated January 31, 2000 for Rs 1,00,000/- which when presented for collection was returned Crl.R.P.No.2771/2004 2 dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P5 dated February 17, 2000, 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 PW1 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. PW 1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 4. The learned Magistrate 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 which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. Crl.R.P.No.2771/2004 3 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. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The specific case of the accused as suggested during cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that during December 1995, he borrowed Rs.15,000/- from one Jayaprabha and as a security he issued a signed blank cheque which was misused by the complainant and created Ext.P1. No evidence was adduced by him to prove his case. Therefore, in my view, both the courts below are justified in rejecting Crl.R.P.No.2771/2004 4 the above case of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding 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 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months which is confirmed in appeal. The transaction is of the year 2000. Therefore, a lenient view is taken and I I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.1,50,000/- with default sentence would meet the ends of justice. Crl.R.P.No.2771/2004 5 In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 1,50,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for three months. Four months' time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before February 15, 2011 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2771/2004 6