IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 135 of 2002() ----------------------------- CC.523/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA CRA.293/2001 of ADDL. SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER(S): (APPELLANT/ACCUSED): ----------------------------------------- S.D.SAJEEV, S/O. DAYANANDA BABU, SANTHA VILASOM HOUSE, WARD NO.6, PATTANAKKAD PANCHAYAT, CHERTHALA. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): (RESPONDENTS/COMPLAINANTS) ----------------------------------------- 1. K.G.KUNJAPPAN, KANDANAMPARAMBIL HOUSE, WARD NO.II, PATTANAKKAD PANCHAYAT, CHERTHALA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.P.J.JOSEPH PANIKKASSERY FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 135 of 2002 ------------------------------------------------------ Dated: DECEMBER 4, 2009 ORDER The revision petitioner is the accused in C.C.No.523/1997 of the Judicial First Class Magistrate Court-I, Cherthala, and the appellant in Crl.A.No.293/2001 of Additional Sessions Court, Alappuzha. He was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for nine months and also to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for a further period of three months. On appeal his conviction was confirmed, but the substantive sentence was reduced to simple imprisonment for six months. The sentence of fine was maintained. 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 borrowed Rs.85000/- from him on January 28, 1997 and to discharge that liability, he issued the cheque Ext.P1 dated February 28, 1997 drawn on the Pattanakkad Service Co-operative 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.P3 dated April 30, 1997, the accused did not CRL. R.P. 135 of 2002 2 repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 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 P5 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused stated that he has received only Rs.10,000/- from the complainant for which he issued a blank signed cheque which was misused by the complainant and created Ext.P1. No defence evidence was adduced. 4. 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 his conviction was confirmed but the sentence was modified as mentioned above. The accused has now up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the revision 1st respondent/complainant. 6. The following points arise for consideration:- CRL. R.P. 135 of 2002 3 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 7. The complainant was examined as PW.1 before the trial court and Exts.P1 to P5 were marked to prove his case. I have gone through his evidence. No serious discrepancies were pointed out to discredit his evidence. Further his evidence is supported by Exts.P1 to P5.. 8. The case of the accused when questioned under sec.313 Cr.P.C. was that he received only Rs.10,000/- from the complainant for which he issued a blank signed cheque which was misused by the complainant and created Ext.P1. No defence evidence was adduced to prove the same. Therefore the trial court as well as the lower appellate Court are perfectly justified in rejecting the above contention of the accused. That apart, the accused has admitted the execution of Ext.P1 cheque. Therefore 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 hold that the trial court could as well as the lower appellate court are perfectly justified in accepting the evidence of PW.1 and in coming to the conclusion that Ext.P1 cheque CRL. R.P. 135 of 2002 4 was issued by the accused to discharge his liability towards the complainant 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.P3 dated April 30, 1997, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore the conviction of the accused under sec.138 of the Negotiable Instruments Act is confirmed. Point No. II 10. As regard the sentence, the trial court imposed a sentence of simple imprisonment for nine months and also to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for a further period of three months which was modified by the appellate court to simple imprisonment for six months and a fine of Rs.5000/-. The transaction is of the year 1997. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs.95000/- 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. The sentence is modified to the effect that the accused is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.95000/-, in default to undergo simple CRL. R.P. 135 of 2002 5 imprisonment for six months. The fine amount, if realised, shall be paid to PW.1/complainant as compensation. His bail bonds are cancelled. The accused shall surrender before the trial court on or before 30.12.2009 to receive the sentence. One month time is granted for payment of fine. P.Q. BARKATH ALI, JUDGE CRL.M.P.838/2002 Dismissed. 4.12.2009. P.Q. BARKATH ALI, JUDGE mt/-