IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1176 of 2003() ------------------------------ CRA.506/2000 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.492/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.A.SIVADASAN, MANAGING PARTNER, SREETHILAKAM CHITS AND FINANCIERS ANGADITHAZHAM, CHAVAKKAD. BY ADV. SRI.RAJIT RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. 2. V.K.DHARMAN, S/O. KOCHANNAN, VEDEKKEDATH HOUSE, ORUMANAYOOR, CHAVAKKAD. R1 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1176 of 2003 ------------------------------------------------------ Dated: DECEMBER 18, 2009 ORDER The challenge in this revision is to the judgment of Judicial First Class Magistrate, Chavakkad in CC 492/1998 dated October 18, 2000 convicting the accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months and to pay a compensation of Rs.27,150/- to PW.1/complainant, which is confirmed in appeal by the IIIrd Additional Sessions Court (Adhoc) Fast Track Court No.I, Thrissur in Crl.A.506/2000 by judgment dated December 20, 2002. 2. The case of the revision 2nd respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint was that the plaintiff was a subscriber of a chitty conducted by the accused, that the complainant remitted the entire instalments and on termination of the chitty, for the amount due to the complainant, the accused issued the cheque Ext.P2 dated April 6, 1998 for Rs.27,150/- drawn on the Guruvayur Branch of the Indian Bank which, when presented for collection, was 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 May 14, 1998, the accused did not repay the amount, which is an offence punishable Crl.R.P.1176/2003 2 under sec.138 of the Negotiable Instruments Act. 2. Initially the complaint was filed under sec.138 of the Negotiable Instruments Act and sec.420 of IPC. After recording the sworn statement of the complainant/PW.1 the trial court took it on file under sec.138 of the Negotiable Instruments Act only. 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 P12 were marked on the side of the complainant. The Bank Manager was examined as CW.1 and he produced Exts.C1 to C5. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction and submitted that some people trespassed into his house and took away the cheque leaves and using one of those cheque leaves, the complainant has created Ext.P1. No defence evidence was adduced. 3. The trial court on an appreciation of evidence found the revision petitioner/accused guilty of the offence punishable under sec.138 of the 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. 4. Heard the counsel for the revision petitioner/accused. Crl.R.P.1176/2003 3 Though notice was served on the revision 2nd respondent/complainant, he remained absent. 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. The complainant was examined as PW.1 and Exts.P1 to P12 were marked on his side to prove the guilt of the accused. The Bank Manager was examined as CW.1 and he produced Exts.C1 to C5. 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. Further his evidence is supported by Exts.P1 to P12, Exts.C1 to C5 and the evidence of the Bank Manager, CW.1. 7. The case of the revision petitioner when questioned under sec.313 Cr.P.C. by the trial court was that some persons trespassed into his house, took away blank signed cheques and Ext.P1 is one of them. No evidence is adduced on the side of the accused to prove the same. Further, the issuance of Ext.P2 cheque was not seriously disputed by the accused. Therefore the presumption under secs.118 Crl.R.P.1176/2003 4 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. 8. 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 PW.1 and coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act and convicting him thereunder. Therefore his conviction under sec.138 is confirmed. Point No.II 9. The trial court imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs.27,150/- to PW.1/complainant, which is confirmed in appeal. The transaction is of the year 1994. Therefore I feel that a sentence of imprisonment till the rising of court and a direction to pay a compensation of Rs.35,000/- 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. He is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.35,000/-, in default to undergo simple imprisonment for three Crl.R.P.1176/2003 5 months. Out of the compensation ordered to be paid, Rs.30,000/- shall be paid to the complainant/PW.1 as compensation as provided under sec.357(3) of Cr.P.C. The balance amount shall be treated as cost to the State towards the expenses incurred in the prosecution. His bail bonds are cancelled. Two months time is granted for payment of compensation. The accused/revision petitioner shall surrender before the trial court on or before 15.1.2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.4654 of 2003 Dismissed. 18.12.2009 P.Q. BARKATH ALI, JUDGE mt/-