IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 677 of 2002()
1. N. DAYANANDAN, EDITIORIAL SECTION,
... Petitioner
Vs
1. C. HEMANTH KUMAR, S/O. SANKARAN NAIR,
... Respondent
2. THE STATE OF KERALA REP. BY
For Petitioner :SRI.THOMAS ANTONY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :10/12/2009
O R D E R
P.Q. BARKATH ALI, J.
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CRL. R.P. 677 of 2002
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Dated: DECEMBER 10, 2009
ORDER
The challenge in this revision petition is to the judgment of
Judicial First Class Magistrate Court-I, Kozhikode in C.C. No.362/1997
dated 10th May 2000 convicting the revision petitioner under sec.138
of the Negotiable Instruments Act and sentencing him to undergo
simple imprisonment for six months which is confirmed in appeal by
the II Additional Sessions Court, Kozhikode by judgment in
Crl.A.254/2000 dated 11th October 2001.
2. The case of the revision 1st respondent/complainant as
testified by him as PW.1 before the trial court and as detailed in the
complaint is that the accused borrowed Rs.50,000/- from him on
September 20, 1996 and to discharge that liability the accused
issued the cheque Ext.P1 dated September 25, 1996 drawn on the
State Bank of Travancore, Kozhikode Main Branch 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 October 10, 1996, the
accused did not repay the amount, which is an offence punishable
under sec.138 of the Negotiable Instruments Act.
3. On receipt of the complaint the learned magistrate recorded
Crl.R.P. 677/02 2
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 P7 were marked
on the side of the complainant. When questioned under sec.313
Cr.P.C. by the trial court, the accused submitted that he has borrowed
Rs.3000/- from one Viswanathan and that at that time he gave a
signed blank cheque to him as security which was misused by the
complainant and created Ext.P1. On the side of the accused, DW.1
was examined.
4. The learned magistrate 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 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. The revision 1st
respondent/complainant, though received notice, remained absent.
6. 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?
Crl.R.P. 677/02 3
II. Whether the sentence imposed is excessive or unduly
harsh?
Point No.I
7. The complainant was examined as PW.1 and he produced
Exts.P1 to P7 to prove his case. He testified in terms of the complaint
before the trial court. Nothing was brought out during his cross-
examination to discredit his evidence. Further his evidence is
supported by Exts.P1 to P7.
8. The case of the accused was that he borrowed Rs.3000/-
from one Viswanathan and to discharge that liability he gave a signed
blank cheque to him which was misused by the complainant and
created Ext.P1 cheque. No evidence was adduced on the side of the
accused to prove his case. That apart, as the accused has admitted
the execution of the cheque Ext.P1, the presumption under secs.118
and 139 of the Negotiable Instruments Act is available to the
complainant. The accused did not adduce any evidence to rebut the
above presumption.
9. For all these reasons I feel that the trial court as well as
the lower appellate court is perfectly justified in accepting the evidence
of PW.1 and coming to the conclusion that the accused has committed
an offence punishable under sec.138 of the Negotiable Instruments
Act. Therefore I confirm the conviction of the revision
Crl.R.P. 677/02 4
petitioner/accused under sec.138 of the Negotiable Instruments Act.
Point No.II
10. As regards the sentence, the trial court imposed a sentence
of simple imprisonment for six months which is confirmed in appeal.
As the transaction is of the year 1996 and as in spite of the notice
the 1st respondent did not appear, I feel that a sentence of
imprisonment till the rising of court and a fine of Rs.50,000/- 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
Instruments Act is confirmed. The sentence is modified to the effect
that the revision petitioner is sentenced to undergo imprisonment
till the rising of court and to pay a fine of Rs.50,000/-, in default to
undergo simple imprisonment for six months. His bail bonds are
cancelled. Two months time is granted for payment of fine. The fine
amount, if realised, shall be paid to the complainant as compensation
as provided under sec.357(1) of Cr.P.C. Counsel for the revision
petitioner submits that the revision petitioner has already deposited
Rs.25,000/- before the trial court. The said amount shall be adjusted
towards the fine amount. The complainant will be entitled to withdraw
that amount from the trial court. The accused/revision petitioner
Crl.R.P. 677/02 5
shall surrender before the trial court on or before 30.12.2009 to
receive the sentence.
P.Q. BARKATH ALI, JUDGE
CRL.M.P.4099 of 2002
Dismissed.
10.12.2009. P.Q. BARKATH ALI, JUDGE
mt/-
