IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1363 of 2002(B) ------------------------------- C.C.50/2000 OF CJM COURT, THODUPUZHA. CRL.A. 203/2001 OF SESSIONS COURT, THODUPUZHA ............ REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOSE KAPPAN, KAPPIL HOUSE, MUNDOKKALLU JUNCTION, THODUPUZHA. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. BABY JOSEPH, KIZHAKKEKUNNEL HOUSE, RAMAPURAM P.O., MEENACHIL TALUK. R1 BY PUBLIC PROSECUTOR SRI K.J. MOHAMED ANZAR R2 BY ADV. SRI K.K.. CHANDRAN PILLAI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1363 of 2002 ------------------------------------------------------ Dated: DECEMBER 16, 2009 ORDER The challenge in this revision is to the judgment of Chief Judicial Magistrate, Thodupuzha in C.C. No.50/2000 dated August 8, 2001 convicting the accused under sec.138 of the Negotiable Instruments Act and sentencing him to pay a fine of Rs.40,000/-, in default to undergo simple imprisonment for three months, which is confirmed in appeal by the Sessions Court, Thodupuzha in Crl.A.203/2001 by judgment dated October 7, 2002. The fine amount, if realised, was ordered to be paid to PW.1/complainant as compensation. 2. The case of the revision 2nd respondent/complainant as testified by him as PW.1 and as detailed in the complaint before the trial court is that the accused borrowed Rs.One lakh from the complainant on April 30, 1999 and to discharge that liability the accused issued the cheque Ext.P1 dated November 1, 1999 which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P5 dated November 15, 1999, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. Crl.R.P.1363/02 2 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. PW.1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C., the accused submitted that he had some financial dealings with some other person for which he had given a signed blank cheque which was misused by the complainant and created Ext.P1 cheque. No defence evidence was adduced. 4. The learned magistrate on an appreciation of evidence found the revision petitioner 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. 5. Heard the counsel for the revision petitioner and the revision 2nd 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.1363/02 3 II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The complainant was examined as PW.1 and Exts.P1 to P6 were marked on his side. PW.1 testified in terms of the complaint. No serious discrepancies were pointed out in his evidence to discredit his evidence. His evidence is supported by Exts.P1 to P6. 8. When questioned under sec.313 Cr.P.C. by the trial court, the case of the accused was that he had some financial transactions with some other person for which as security he issued a signed blank cheque which was misused by the complainant and created Ext.P1. No evidence was adduced on the side of the accused to prove his case. Further, as the accused admits the execution of the cheque Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. 9. For all these reasons I am inclined to hold 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. I find no reason to come to a different conclusion. Therefore the conviction of the revision petitioner/accused Crl.R.P.1363/02 4 under sec.138 of the Negotiable Instruments Act is confirmed. Point No.II 10. As regards the sentence, the trial court imposed a fine of Rs.40,000/-, in default to undergo simple imprisonment for three months, which is confirmed in appeal. The fine amount, if realised, was ordered to be paid to PW.1/complainant as compensation. I find no special reason to reduce the sentence. In the result, confirming the conviction and sentence of the revision petitioner, the revision petition is dismissed. Counsel for the revision petitioner submits that Rs.20,000/- has been deposited by him towards the fine amount before the trial court. One month time is granted for payment of the balance amount. The revision 2nd respondent/complainant is entitled to withdraw that amount. P.Q. BARKATH ALI, JUDGE CRL.M.P.7766 of 2002 Dismissed. P.Q. BARKATH ALI, JUDGE mt/-