IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 988 of 2001()
1. P.A. ABDUL SALAM
... Petitioner
Vs
1. M. ASSIS
... Respondent
For Petitioner :SRI.TOM JOSE
For Respondent :SRI.SEBASTIAN THOMAS MICHEAL
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :13/10/2009
O R D E R
P.Q.BARKATH ALI, J.
- - - - - - - - - - - - - - - - - - - - -
Crl.R.P.No. 988 OF 2001
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 13th day of October, 2009
ORDER
The revision petitioner is the accused in C.C.No.1074/1995 of
Judicial First Class Magistrate Court, Kochi and appellant in
Crl.Appeal No. 325/2000 of Sessions Court, Ernakulam. The revision
petitioner was convicted under Section 138 of the Negotiable
Instruments Act and sentenced to undergo rigorous imprisonment for a
period of six months and to pay a fine of Rs. 3000/-, in default, to
undergo simple imprisonment for a further period of two months by the
trial court. On appeal, his conviction under Section 138 of the
Negotiable Instruments Act was confirmed, but sentence was modified
to the effect that he was sentenced to undergo simple imprisonment for
five days and to pay compensation of Rs. 56,000/-, in default, to
undergo simple imprisonment for a period of two months. The lower
appellate court has directed payment of Rs. 53,000/- out of the
compensation to the complainant. Now the accused has come up in
revision challenging his conviction and sentence.
Crl.R.P.No.988/01 Page numbers
2. The case of the revision first respondent/complainant as
testified by him as PW1 and as detailed in the complaint before the trial
court was that the accused borrowed Rs. 50,000/- from the complainant
and to discharge that liability, he issued the cheque – Ext.P1 dated
09/09/1995 drawn on South Indian Bank Ltd which when presented
for collection through Nedungadi Bank Ltd, Mattanchery branch was
returned dishonoured for want of sufficiency of funds in the account of
the accused in the bank and that inspite of the notice – Ext.P4, the
accused did not repay the amount which is an offence punishable
under Section 138 of the Negotiable Instruments Act.
3. The learned Magistrate on receipt of the complaint recorded
the sworn statement of the complainant PW1 and took cognizance of
the case. The accused/revision petitioner on appearance before the trial
court pleaded not guilty to the charge under Section 138 of the
Negotiable Instruments Act. PWs 1 and 2 were examined and Exts.P1
to P8 were marked on the side of the complainant before the trial court.
When questioned under Section 313 Cr.P.C., the accused denied the
entire transaction. On the side of the accused, DWs 1 and 2 were
Crl.R.P.No.988/01 Page numbers
examined and Ext.D1 was marked.
4. The learned Magistrate on an appreciation of the evidence
found the revision petitioner guilty of the offence punishable under
Section 138 of the Negotiable Instruments Act, convicted him
thereunder and sentenced him as aforesaid. The lower appellate court
confirmed his conviction and modified the sentence as aforesaid. The
accused has come up in revision challenging his conviction and
sentence.
5. The following points arise for consideration :
1) Whether the conviction of the revision
petitioner under Section 138 of the Negotiable
Instruments Act by the trial court which is confirmed
in appeal can be sustained ?
2) Whether the sentence imposed is
excessive or unduly harsh ?
Point No.1
6. On the side of the complainant PWs 1 and 2 were
examined and Exts.P1 to P8 were marked before the trial court. PW1
is the complainant. PWs 2 is the Managers of the bank. PW1 testified
Crl.R.P.No.988/01 Page numbers
before the trial court in terms of the complaint . I have gone through
the evidence of PW1. I find no suspicious inconsistencies or
discrepancies in his evidence so as to discredit his evidence. Further
his evidence is supported by Exts.P1 to P8.
7. The revision petitioner/accused denied his signature in
Ext.P1. But DW1, the Assistant Director, FSL Thiruvananthapuram
has examined his signature in Ext.P1 in detail with the admitted
signatures of the accused and found that both were in the same
handwriting. Therefore, the version of the accused that he has not
issued the cheque – Ext.P1 cannot be accepted. No other point is
argued before me. Therefore, I am inclined to confirm the conviction
of the revision petitioner/accused under Section 138 of the Negotiable
Instruments Act which is confirmed in appeal by the lower appellate
court .
Point No.2
8. As regards the sentence, the trial court imposed rigorous
imprisonment for six months and to pay a fine of Rs. 3,000/-, in
default, to undergo simple imprisonment for two months. The lower
Crl.R.P.No.988/01 Page numbers
appellate court modified the sentence to the effect that he is sentenced
to undergo simple imprisonment for five days and to pay compensation
of Rs. 56,000/-. The transaction is of the year 1995. Further the
accused is now aged about 50. Taking into consideration all these
aspects, I feel that a sentence of imprisonment till the rising of court
and a fine of Rs.56,000/- would meed the ends of justice.
In the result, the revision petition is allowed in part. The
conviction of the revision petitioner under Section 138 of the
Negotiable Instruments Act by the trial court which is confirmed in
appeal is upheld. The revision petitioner/accused is sentenced to
undergo simple imprisonment till the rising of court and to pay a fine
of Rs. 56,000/-, in default, to undergo simple imprisonment for a
further period of three months. Out of the fine amount realised,
Rs. 53,000/- shall be paid to complainant as compensation as provided
under Section 357(1) Cr.P.C. Rs. 35000/- deposited by the revision
petitioner before the trial court shall be adjusted towards the fine
amount. His bail bonds are cancelled. Revision petitioner shall
surrender before the trial court on or before 30-10-2009 to receive the
Crl.R.P.No.988/01 Page numbers
sentence. Counsel for the revision petitioner submits that wife of the
revision petitioner is undergoing treatment for cancer. Hence four
month’s time is granted for payment of fine.
P.Q.BARKATH ALI
JUDGE
sv.
Crl.R.P.No.988/01 Page numbers Crl.R.P.No.988/01 Page numbers