IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2659 of 2004(B)
1. P.T.VISWANATHAN, KOCHUPULIMOOTTIL HOUSE,
... Petitioner
Vs
1. M.J.MATHEW, MANAKKU SHERLY SADHANAM,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.S.SANAL KUMAR
For Respondent :SRI.P.HARIDAS
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :11/08/2010
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.2659 OF 2004
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Dated this the 11th day of August, 2010
ORDER
Revision petitioner is the accused in C.C.No.271/1995 on the file
of Judicial First Class Magistrate Court, Thiruvalla and appellant in
Crl.Appeal No.39/1998 of Addl. District & Sessions Court (Adhoc)
Fast Track Court I, Pathanamthitta. He was convicted under Section
138 of Negotiable Instruments Act and was sentenced to undergo
simple imprisonment for six months by the trial court by judgment
dated February 27, 1998. On appeal by the accused, the lower
appellate court by judgment dated July 27, 2004 confirmed his
conviction, but modified the sentence to simple imprisonment for one
month and to pay a compensation of Rs. 72,500/- to the complainant, in
default to undergo simple imprisonment for four months. 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. 36,250/- from the complainant and to
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discharge that liability, he has issued the cheque Ext.P1 dated
November 10, 1994 drawn on the Kavumbhagam Branch of Federal
Bank which when presented for collection was returned with the
endorsement “payment stopped by the drawer” and that in spite of
notice issued, 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 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. PWs 1 to 3 were examined and Exts.P1 to P5 were
marked on the side of the complainant. When questioned under Section
313 of Cr.P.C., the accused denied the entire transaction. DW1 was
examined on his side and Exts.D1 to D6 were marked.
4. The Trial court 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. On appeal by the accused, the lower appellate court
confirmed his conviction, but modified his sentence as mentioned
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above. The accused has now come up in revision challenging his
conviction and 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. The complainant as PW1 testified in a convincing manner
before the trial court regarding the transaction in terms of the complaint
before the Trial court. Pws 2 and 3 are the Bank Managers. They
supported his case. Nothing was brought out during their cross
examination to disbelieve their evidence. Further the evidence of PW1
is supported by Exts.P1 to P5.
8. The case of the accused as suggested during cross
examination and as stated by him when questioned under Section 313
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Cr.P.C. was that he has lost the cheque Etxt.P1 from his possession,
that the complainant obtained that cheque and forged the same and
created Ext.P1. To substantiate his case, accused examined DW1 to
DW3 and produced Exts.D1 to D6. DW1 is PW2, the Manager of
Federal Bank, Kavumbhagam branch. He was examined by the
accused to prove Ext.D5 intimation sent by him to the bank regarding
the losing of the cheque. DW2 is the Head Constable of Edathua
Police Station. He was examined to prove Ext.D6, the intimation sent
by the accused to the police station. DW3 is the Social worker, who
allegedly mediated the dispute between the complainant and the
accused.
9. The Trial court as well as the lower appellate court has
considered the evidence of DW1 to DW3 and Exts.D1 to D6 and
chosen to reject the same. I have gone through their evidence and
perused the records. I find no reason to come to a different conclusion.
That apart, as the accused has admitted the issuance of cheque Ext.P1,
the 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
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effectively.
10. For all these reasons, I am of the view that the trial court as
well as the lower appellate court is perfectly justified in accepting the
evidence of the complainant and rejecting the evidence of the accused
and in holding 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
11. As regards the sentence, the Trial court imposed a sentence
of simple imprisonment for six months which is modified by the lower
appellate court to simple imprisonment for one month and to pay a
compensation of Rs. 72,500/-. Taking into consideration the fact that
the transaction is of the year 1994, I feel that a sentence of
imprisonment till the rising of court and a compensation of Rs.36,250/-
being the cheque amount, in default to undergo simple imprisonment
for three months, would meet the ends of justice.
12. In the result, revision petition is allowed in part. The
conviction of the revision petitioner under Section 138 of Negotiable
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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 compensation of Rs. 36,250/- to the
complainant as provided under Section 357(3) Cr.P.C., in default to
undergo simple imprisonment for three months.
Counsel for the complainant submits that the complainant has
filed a Civil Suit- O.S.No.745/1997 before the Munsiff Court,
Thiruvalla on the basis of the same cheque which was decreed.
Therefore, the compensation awarded in this case will be adjusted
towards the decretal amount of the above suit and the complainant can
execute the decree for the balance amount. The bail bonds of the
accused are cancelled. The accused shall appear before trial court on or
before 31/08/2010 to undergo the sentence. Two months time is
granted for payment of compensation.
P.Q.BARKATH ALI
JUDGE
sv.
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