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N. Dayanandan vs C. Hemanth Kumar on 10 December, 2009

Kerala High Court
N. Dayanandan vs C. Hemanth Kumar on 10 December, 2009
       

  

  

 
 
  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.

                  ------------------------------------------------------

                            CRL. R.P. 677 of 2002

                  ------------------------------------------------------

                        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/-

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