IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2621 of 2004(C)
1. GEORGE THOMAS @ CHIRACKAL APPACHAN,
... Petitioner
Vs
1. V.V.MARKOSE, S/O.VARGHESE,
... Respondent
2. STATE OF KERALA, REP. BY ITS
For Petitioner :SRI.D.KISHORE
For Respondent :SRI.SAJU.S.A
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :22/07/2010
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.2621 OF 2004
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Dated this the 22nd day of July, 2010
ORDER
Revision petitioner is the accused in C.C.No.435/2001 of Judicial
First Class Magistrate Court II, Perambra and appellant in Crl.Appeal
No.100/2003 of Sessions Court, Kozhikode. On a private complaint
filed by the first respondent, the accused/revision petitioner was found
guilty of the offence punishable under Section 138 of Negotiable
Instruments Act. He was convicted under Section 138 of Negotiable
Instruments Act and was sentenced to undergo simple imprisonment
for three months and to pay a compensation of Rs. 40,000/- under
Section 357(3) Cr.P.C., in default to undergo simple imprisonment for
two months by the trial court by judgment dated January 20, 2003
which is confirmed in appeal by the lower appellate court by
judgment dated July 27, 2004. The accused has now come up in
revision challenging his conviction and sentence.
2. The case of the first respondent/complainant as testified by
him as PW1 before the trial court and as detailed in the complaint was
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that towards the value of Arecanuts sold to the accused by the
complainant, accused issued two cheques Exts.P1 and P2 for
Rs.20,000/- each dated July 28, 2001 drawn on the South Malabar
Gramin Bank, Chekkittapara branch which when presented for
collection were returned dishounoured for want of sufficiency of funds
in the account of the accused in the bank and that in spite of notice
Ext.P5 dated September 19, 2001, the accused did not repay the amount
which is an offence punishable under Section 138 of Negotiable
Instruments Act.
3. On receipt of the complaint, the learned Magistrate
recorded the sworn statement of the complainant PW1 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
Instruments Act. PW 1 was examined and Exts.P1 to P10 were marked
on the side of the complainant. When questioned under Section 313 of
Cr.P.C., the accused denied the transaction and further stated that he
has given two signed blank cheques to one Ammad which have been
misused by the complainant and created this case. No defence evidence
Crl.R.P.No.2621/2004 3
was adduced.
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 and the
counsel for the revision first respondent.
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 was examined as PW1 and Exts.P1 to P10
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were marked on the side of the complainant to prove the guilt of the
accused. I have gone through his evidence. Nothing was brought out
during his cross examination to disbelieve his evidence. Further his
evidence is supported by Exts.P1 to P10.
8. The specific case of the accused as suggested during cross
examination and as stated by him when questioned under Section 313
Cr.P.C. was that the two blank signed cheques were given to one
Ammad and that the complainant managed to obtain the same and filed
this false complaint against him. No evidence was adduced by him to
prove his case. Therefore, in my view, both the courts below are
justified in rejecting the above case of the accused. Further, as the
execution of the cheques Ext.P1 and P2 were 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
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punishable under Section 138 of Negotiable Instruments Act and
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. 40,000/-, in default to undergo simple imprisonment for a further
period of two months which is confirmed in appeal. Taking into
consideration the fact that the transaction is of the year 2001, I feel that
a substantive sentence of imprisonment till the rising of court and a
compensation of Rs.40,000/- as provided under Section 357(3)
Cr.P.C., in default to undergo simple imprisonment for two months
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 he
is sentenced to undergo imprisonment till the rising of court and to pay
Crl.R.P.No.2621/2004 6
a compensation of Rs. 40,000/- to the complainant as provided under
Section 357(3) Cr.P.C., in default to undergo simple imprisonment for
two months. Two month’s time is granted for payment of
compensation. The amount, if any, deposited by the revision petitioner
before the trial court shall be adjusted towards the compensation
amount awarded. The complainant is permitted to withdraw that
amount. The revision petitioner shall surrender before the trial court on
or before 15/08/2010 to receive the sentence. His bail bonds are
cancelled.
P.Q.BARKATH ALI
JUDGE
sv.
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