IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 673 of 2002()
1. G.GIREESH, T.C.21/1890, KULATHUMKARA
... Petitioner
Vs
1. N.BALAKRISHNAN NAIR, PROPRIETOR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.GOPAKUMAR R.THALIYAL
For Respondent :SRI.V.R.GOPU
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :14/12/2009
O R D E R
P.Q. BARKATH ALI, J.
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CRL. R.P. 673 of 2002
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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
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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/-