IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 370 of 2003()
1. MARIYAKUTTY JOHN,
... Petitioner
Vs
1. N.K.SURESH KUMAR,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :SRI.P.BABU KUMAR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :21/12/2009
O R D E R
P.Q. BARKATH ALI, J.
------------------------------------------------------
CRL. R.P.370 of 2003
------------------------------------------------------
Dated: DECEMBER 21, 2009
ORDER
The revision petitioner is the accused in C.C. No.629/1997
of Judicial First Class Magistrate Court, Pala, and the appellant in
Crl.A.48/2000 of Additional Sessions Court, Kottayam. He was
convicted under sec.138 of the Negotiable Instruments Act and was
sentenced to undergo imprisonment till the rising of court and to pay a
compensation of Rs.35,000/- to the complainant as provided under
sec.357(3) Cr.P.C., in default to undergo simple imprisonment for six
months, which is confirmed in appeal. The accused has now come up
in revision challenging her conviction and sentence.
2. On receipt of the complaint the learned magistrate recorded
the sworn statement of the complainant/PW.1 and took cognizance of
the offence. The accused on appearance before the trial court
pleaded not guilty to the charge under sec.138 of the Negotiable
Instruments Act. PW.1 was examined and Exts.P1 to P8 were marked
on the side of the complainant. When questioned under sec.313
Cr.P.C. by the trial court, the accused denied the incriminating
evidence. No defence evidence was adduced.
3. The learned magistrate on an appreciation of evidence found
the revision petitioner/accused guilty of the offence punishable under
sec.138 of the Negotiable Instruments Act, convicted her thereunder
Crl.R.P. 370/03 2
and sentenced her as aforesaid, which is confirmed in appeal. The
accused has now come up in revision challenging her conviction and
sentence.
4. Heard the counsel for the revision petitioner and the
revision 1st respondent/complainant.
5. The following points arise for consideration:-
I. Whether the conviction of the revision petitioner under
sec.138 of the Negotiable Instruments Act can be
sustained?
II. Whether the sentence imposed is excessive or unduly
harsh?
Point No.I
6. PW.1 was examined and Exts.P1 to P8 were marked on the
side of the complainant to prove his case before the trial court.
PW.1/complainant testified in terms of the complaint before the trial
court. Nothing was brought out during his cross-examination to
discredit his evidence.
7. When questioned under sec.313 Cr.P.C. by the trial court
the accused contended that the notice was issued not within time.
There is no substance in the above contention. On a perusal of
Exts.P1 to P4 it is seen that notice was issued within time as
contemplated under sec.138 of the Negotiable Instruments Act.
8. Another contention raised by the revision petitioner is that
the accused borrowed Rs.15,000/- and gave a blank signed cheque
Crl.R.P. 370/03 3
which was used by the complainant and created Ext.P1. But no
evidence is adduced by the accused to prove the same.
9. For all these reasons I am inclined to hold that both the
courts below are justified in accepting the evidence of PW.1 and
holding that the accused has committed an offence punishable under
sec.138 of the Negotiable Instruments Act. Therefore I confirm the
conviction of the revision petitioner under sec.138 of the Negotiable
Instruments Act.
Point No.II
10. As regards the sentence, the trial court imposed a sentence
of imprisonment till the rising of court and to pay a compensation of
Rs.35,000/- to the complainant, in default to undergo simple
imprisonment for six months, which is confirmed in appeal. I find no
reason to reduce the sentence. Therefore confirming the conviction
and sentence of the revision petitioner, the revision petition is
dismissed.
One month time is granted for payment of fine. The
accused/revision petitioner shall surrender before the trial court on or
before 8.1.2010 to receive the sentence.
P.Q. BARKATH ALI, JUDGE
CRL.M.P.1286 of 2003
Dismissed.
17.12.2009 P.Q. BARKATH ALI, JUDGE Crl.R.P. 370/03 4 mt/-