IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3034 of 2004(D)
1. S.P.ABDUL RASHEED,
... Petitioner
Vs
1. P.SURESH KUMAR, S/O.THEYYAN,
... Respondent
2. STATE OF KERALA REP. BY PUBLIC
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :SRI.R.BINDU (SASTHAMANGALAM)
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :22/10/2010
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.3034 OF 2004
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Dated this the 22nd day of October, 2010
ORDER
Challenge in this revision petition by the accused in
C.C.No.410/1999 on the file of Judicial First Class Magistrate Court V,
Kozhikode and appellant in Crl.Appeal No.1/2003 on the file of
Sessions Court, Kozhikode is to the judgment of the Magistrate dated
December 12, 2002 convicting the revision petitioner/accused under
Section 138 of Negotiable Instruments Act and sentenced to undergo
simple imprisonment for three months. The accused was also directed
to pay a compensation of Rs. 20,000/- to the complainant, in default to
undergo simple imprisonment for one month. On appeal by the
accused, the lower appellate court confirmed his conviction and
sentence by judgment dated August 17, 2004.
2. The case of the revision first respondent/complainant as
testified by him as PW1 before the trial court and as detailed in the
complaint in brief is this :
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The accused availed a loan of Rs. 1,40,000/- from the
complainant. In discharge of that debt, the accused transferred the
chitty fund standing in his name in the Kerala State Financial
Enterprises for Rs. 70,000/- . For the balance amount of Rs. 70,000/-,
the accused issued two cheques, one for Rs. 20,000/- and another for
Rs.50,000/-. Ext.P2 is the cheque for Rs.20,000/- issued by the
accused in favour of the complainant dated December 5, 1998 on the
understanding that Ext.P2 cheque will be encahsed after March 1,
1999. The cheque when presented for collection 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.P5 dated April 9,
1999, the accused did not repay the amount. Therefore, the
complainant filed the complaint before the trial court under Section 138
of Negotiable Instruments Act.
3. On receipt of the complaint, the learned Magistrate
recorded the sworn statement of the complainant and took cognizance
of the offence. The accused on appearance before the trial court
pleaded not guilty to a charge under Section 138 of Negotiable
Crl.R.P.No.3034/2004 3
Instruments Act. Complainant was examined as PW1 and Ext.P1 to
P5 series were marked on his side. When questioned under Section
313 of Cr.P.C., the accused denied the entire transaction. Ext.D1 was
marked on his side.
4. The learned Magistrate on an appreciation of evidence
found the revision petitioner guilty of the offence punishable under
Section 138 of 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/accused and
the counsel for the revision first respondent/complainant.
6. The following points arise for consideration :
1) Whether the conviction of the revision
petitioner under Section 138 of Negotiable
Instruments Act rendered 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
7. Complainant as PW1 testified in a convincing manner
Crl.R.P.No.3034/2004 4
before the trial court regarding the transaction. Nothing was brought
out during his cross examination to disbelieve his evidence. Further his
evidence is supported by Exts.P1 to P5 series.
8. The specific case of the accused as suggested during the
cross examination of PW1 and as stated by him when questioned under
Section 313 Cr.P.C. was that he has discharged the debt due to the
complainant. In an attempt to prove his case, the accused produced
Ext.D1, a note book containing several entries. But Ext.D1 does not
help the accused to prove his case. No other evidecne was adduced by
the accused before the trial court. That apart, as the execution of the
cheque Ext.P1 was admitted by the accused, presumption as envisaged
under Section 118 and 139 of Negotiable Instruments Act is available
to the complainant. No evidence was adduced by the accused to rebut
the above presumption.
9. For all these reasons, I hold that the trial court as well as
the lower appellate court is perfectly justified in accepting the evidence
of PW1 and finding that the accused has committed the offence
punishable under Section 138 of Negotiable Instruments Act and
Crl.R.P.No.3034/2004 5
convicting him thereunder. Therefore I confirm the conviction of the
revision petitioner under Section 138 of Negotiable Instruments Act.
Point No.2
10. As regards the sentence, the Trial court imposed a sentence
of simple imprisonment for three months and to pay a compensation of
Rs.20,000/-, in default to undergo simple imprisonment for one month,
which is confirmed in appeal. Taking into consideration the fact that
the transaction is of the year 1999, a lenient view is taken. I feel that a
sentence of imprisonment till the rising of court and a compensation of
Rs.25,000/- with default sentence would meet the ends of justice.
In the result, revision petition is allowed in part. The conviction
of the revision petitioner under Section 138 of Negotiable Instruments
Act is confirmed. The sentence imposed by the trial court which is
confirmed by the lower appellate Court is modified to the effect that
revision petitioner is sentenced to undergo imprisonment till the rising
of court and to pay a compensation of Rs.25,000/- to the complainant
as provided under Section 357(3) Cr.P.C., in default to undergo simple
imprisonment for one month. The revision petitioner shall surrender
Crl.R.P.No.3034/2004 6
before the trial court on or before 15/11/2010 to receive the sentence.
Time is granted till 15/11/2010 for payment of compensation. His bail
bonds are cancelled.
P.Q.BARKATH ALI
JUDGE
sv.
Crl.R.P.No.3034/2004 7
P.Q.BARKATH ALI
JUDGE
sv.
Crl.R.P.No.3034/2004 8