IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 527 of 2005(A)
1. K.SOMASUNDARAN, S/O.ACHUTHAN,
... Petitioner
Vs
1. N.A.MOHAN SINGH, S/O. AYYAPPAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.B.ASOKAN
For Respondent :SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :16/11/2010
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.527 OF 2005
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Dated this the 16th day of November, 2010
ORDER
Revision petitioner is the accused in C.C.No.402/2002 of Judicial
First Class Magistrate Court I, Kochi and appellant in Crl.Appeal
No.126/2004 of Addl. Sessions Court ( Adhoc -II), Ernakulam. He
was convicted under Section 138 of Negotiable Instruments Act and
was sentenced to undergo simple imprisonment for six months and to
pay a compensation of Rs. 2,00,000/- under Section 357(3) Cr.P.C., in
default to undergo simple imprisonment for two months by the learned
Magistrate by judgment dated January 14, 2004 which is confirmed in
appeal by the lower appellate court by judgment dated July 21, 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
that accused borrowed Rs. 2,00,000/- from the complainant on June 19,
2001 agreeing to repay the same within six months and to discharge
that liability, the accused issued the cheque Ext.P1 dated
Crl.R.P.No.527/2005 2
March 1, 2002 drawn on the Central Bank of India, Willingdon Island
branch for Rs. 2,00,000/- which when presented for collection was
returned dishounoured for want of sufficiency of funds in the account
of the accused in the bank and that in spite of notice Ext.P4 dated
March 13, 2002, 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 P6 were marked
on the side of the complainant. When questioned under Section 313 of
Cr.P.C., the accused denied the entire transaction . No defence evidence
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
Crl.R.P.No.527/2005 3
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
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 P6.
8. The specific case of the accused as suggested during cross
examination of PW1 and as stated by him when questioned under
Section 313 Cr.P.C. was that he borrowed only Rs. 25,000/- and as a
security he issued a signed blank cheque to the complainant which was
misused by the complainant and created Ext.P1. But no evidence was
adduced by the accused to prove his case. That apart, as the execution
Crl.R.P.No.527/2005 4
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 reliable evidence was adduced by the
accused to rebut the above presumption.
9. For all these reasons, I am of the view that the trial court as
well as the lower appellate court are 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.
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 six months and to pay a compensation of
Rs. 2,00,000/-, in default to undergo simple imprisonment for a further
period of two months which is confirmed in appeal. As the transaction
is of the year 2001, a lenient view is taken and I I feel that a sentence
of imprisonment till the rising of court and a compensation of
Rs.2,00,000/- with default sentence would meet the ends of justice.
In the result, revision petition is allowed in part. The conviction
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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. 2,00,000/- to the complainant
as provided under Section 357(3) Cr.P.C., in default to undergo simple
imprisonment for three months. Three months’ 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 ordered to be paid. The complainant is
permitted to withdraw that amount. Revision petitioner is permitted to
pay the balance compensation amount direct to the complainant and
produce voucher before the trial court. The revision petitioner shall
surrender before the trial court on or before December 15,2010 to
receive the sentence. His bail bonds are cancelled.
P.Q.BARKATH ALI
JUDGE
sv.
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