IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.Rev.Pet.No. 673 of 2002() ----------------------------- CRA.115/1999 of SESSIONS COURT, TRIVANDRUM CC.150/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- G.GIREESH, T.C.21/1890, KULATHUMKARA VEEDU, KARAMANA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.A.K.HARIDAS RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. N.BALAKRISHNAN NAIR, PROPRIETOR, GRACE TAILORS,POST OFFICE-JUNCTION, MANACAUD P.O., THIRUVANANTHAPURAM (RESIDING AT KALIYAL VEEDU, C.V.R.PURAM, AMARAVILA, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.V.R.GOPU FOR R1 SRI.S.KRISHNAKUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.J.MUHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 673 of 2002 ------------------------------------------------------ Dated: DECEMBER 14, 2009 ORDER The revision petitioner is the accused in C.C. No.150/1997 of Judicial First Class Magistrate Court-I, Thiruvananthapuram, and the appellant in Crl.A.115/1999 of the Sessions Court, Thiruvananthapuram. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,50,000/-, in default to undergo simple imprisonment for two months by the trial court. Out of the fine amount, if realised, Rs.75,000/- was ordered to be paid to the complainant as compensation. On appeal by the accused the lower appellate court confirmed his conviction, but modified the sentence to simple imprisonment for one month and to pay a compensation of Rs.75,000/-. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the complainant as testified by him as PW.1 before the trial court and as detailed in the complaint is that the accused has availed a loan of Rs.75,000/- from him on March 15, 1997 promising to repay the amount and to discharge that liability the accused issued two cheques, original of Exts.P1 and P2, dated 15.4.1997 and 25.4.1997 for Rs.50,000/- and Rs.25,000/- Crl.R.P.673/02 2 respectively, drawn on the Allahabad Bank, Thiruvananthapuram, 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.P4 dated June 16, 1997, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. The complaint was originally filed before the Chief Judicial Magistrate Court, Thiruvananthapuram who recorded the sworn statement of the complainant/PW.1 and took cognizance of the case as C.C.348/1997. The case was later transferred to the trial court which re-filed it as C.C.150/1997. 4. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P10 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction. No evidence was adduced on the side of the accused. 5. The trial court 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. On appeal by the accused, the lower Crl.R.P.673/02 3 appellate court confirmed his conviction, but modified the sentence as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 6. Heard counsel for the revision petitioner and the revision 1st respondent. 7. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act rendered by the trial court which is confirmed inn appeal can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 8. PWs.1 and 2 were examined and Exts.P1 to P10 were marked on the side of the complainant before the trial court to prove the guilt of the accused. PW.1, the de facto complainant, testified in terms of the complaint. Nothing was brought out during his cross- examination to disprove his case. Further his evidence is supported by PW.2, the Bank Manager, and Exts.P1 to P10. 9. When questioned under sec.313 Cr.P.C. by the trial court, the case of the accused was that the cheque Ext.P1 was issued only as security and that therefore the complaint is not maintainable. There is no substance in the above contention. No evidence is adduced on Crl.R.P.673/02 4 the side of the accused to prove his case. It was also contended by the accused that the accused has already repaid the amount covered by Exts.P1 and P2. But no documents were produced by him to prove the same. 10. 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 the complainant/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. Point No.II 11. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs.1,50,000/- which is modified in appeal to simple imprisonment for one month and to pay a compensation of Rs.75,000/-. As the transaction is of the year 1997, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.90,000/-, in default to undergo simple imprisonment for three months, 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 Crl.R.P.673/02 5 Instruments Act is confirmed. But the 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.90,000/-, in default to undergo simple imprisonment for three months. His bail bonds are cancelled. Two months time is granted for payment of fine. The fine amount, if realised, shall be paid to PW.1/the complainant as compensation as provided under sec.357(1) of Cr.P.C. The accused/revision petitioner shall surrender before the trial court on 7.1.2010 to receive his sentence. CRL.M.P.4092 of 2002 Dismissed. 14.12.2009. P.Q. BARKATH ALI, JUDGE mt/-