IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.Rev.Pet.No. 1403 of 2002(C) -------------------------------------------- CRL.A.NO.204/1996 OF I ADDL. SESSIONS COURT, TRIVANDRUM, ST.NO.513/1993 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- SAMKRISPSDAS, S/O. DASAN, CHERUVOTTUKIZHAKKUMKARA PUTHEN VEEDU, VELIYANOOR P.O., VELLANADU, THIRUVANANTHAPURAM. BY ADV. MR.M.SREEKUMAR. RESPONDENTS/STATE & RESPONDENT/COMPLAINANT: ---------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. WILSON, VADAKKUMKARA VEEDU, AYANTHICHIRA, PUNNALAL MURI, PERUMKULAM VILLAGE. R1 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR, R2 BY ADVS. MR.K.SATHEESH KUMAR, MR.T.A.UNNIKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. 1403/2002-C: ORDER ON CRL.M.P. NO.7937/2002 IN CRL.R.P. NO. 1403/2002 DISMISSED 30/10/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1403 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30th day of October,2009 O R D E R Revision petitioner is the accused in S.T.Case No.513 of 1993 of the Judicial Magistrate of the First Class-I, Nedumangad and the appellant in Crl.A.No.204 of 1996 on the file of the First Addl. Sessions Court, Thiruvananthapuram. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.15,000/- to PW1 complainant. On appeal, the lower appellate court confirmed his conviction and sentence. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the complainant, as testified by him as PW1 before the trial court and as detailed in the complaint in brief was that the accused borrowed Rs.11,000- from the complainant and to discharge that liability the accused issued a cheque Ext.P1 dated March 30, 1993, drawn on the Thiruvananthapuram District Co-operative Bank, Vellanadu branch, which Crl.RP 1403/02 2 when presented for collection was dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P7 dated December 17, 1994, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, sworn statement of the complainant PW1 was recorded and the learned Magistrate took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PWs.1 to 4 were examined and Exts.P1 to P7 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he pleaded innocence. DWs.1 and 2 were examined and Exts.D1 to D4 were marked on his side. The trial court, on an appreciation of the evidence, found him guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, his conviction and sentence were confirmed by the lower appellate court. The accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the Crl.RP 1403/02 3 trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 5. PWs.1 to 4 were examined and Exts.P1 to P7 were marked on the side of the complainant. PW1 is the de facto complainant who testified in terms of the complaint before the trial court. I have gone through the evidence of PW1. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by PWs.2 and 3. PW2 Bank Manager and PW3 independent witness were examined to prove the transaction between accused and PW1. They supported PW1 on all material particulars. PW4 is the Post Master of Vellanad Post Office who was examined to prove the receipt of notice by the accused. Ext.P5 is acknowledgment card and Ext.P6 is postal receipt. The accused has admitted issuance of cheque Ext.P1. Therefore, presumptions under sections 118 and 139 of the Negotiable Instruments Act are available to the complainant. The accused was not able to rebut the above presumption effectively. 6. The case of the accused, as stated by him when questioned under section 313 Cr.P.C. by the learned Magistrate and as testified by him as Crl.RP 1403/02 4 DW2, was that he owed Rs.100/- to DW1 for which he issued a cheque, that as there was some mistake in that cheque, the accused issued another cheque but DW1 did not return the earlier cheque, which was misused by the complainant and created Ext.P1 cheque. But there is no reliable evidence to substantiate the above aspect. DW1 admitted when cross- examined that he cannot say whether Ext.P1 cheque was the cheque allegedly issued by the accused to him in the first instance. Further, there is no correction in Ext.P1, as alleged by the accused. That being so, the story of accused that the cheque issued by him to DW1 was misused by PW1 and created Ext.P1 cannot be accepted. 7. The learned counsel for the petitioner argued that there was no statutory notice issued to the accused and that therefore, the trial court should have dismissed the complaint on that ground alone. There is no substance in the above contention. PW4, the Post Master of Vellanad. He would say that he had served the notice to accused. Ext.P5 is the postal acknowledgment card, which hears the signature of accused. Further, the trial court has compared the alleged signature of accused in Ext.P5 with that of his admitted signature in vakkalath, summons etc and found it to be similar. Therefore, the above contention of the the revision petitioner has to be rejected. Crl.RP 1403/02 5 8. For all these reasons, I am of the view that the trial court as welll as the lower appellate court are justified in believing the evidence of PWs.1 to 4 and rejecting the evidence of DWs.1 and 2 and holding that the accused is guilty of offence punishable under section 138 of the Negotiable Instruments Act. That being so, the conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act is confirmed. 9. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for three months and directed to pay compensation of Rs.15,000/- to the complainant, which was confirmed in appeal. The transaction is of the year 1993. Taking into consideration all these aspects, I feel that sentence imprisonment till the rising of court and to pay fine of Rs.15,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which is confirmed in appeal, is upheld. The sentence imposed on the revision petitioner is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.15,000/-, in default to undergo Crl.RP 1403/02 6 simple imprisonment for three months. Out of the fine amount, if realized, Rs.12,000/- shall be paid to PW1 as compensation, as provided under section 357(1) of the Cr.P.C. It is submitted that the revision petitioner has already deposited Rs.5,000/- before the trial court. This amount shall be adjusted towards the fine amount. The revision petitioner shall pay the balance amount within two months from today. The complainant is permitted to withdraw that amount. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. P.Q.BARKATH ALI, JUDGE. mn. Crl.RP 1403/02 7 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1403 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 30-10-2009