IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 103 of 2004(C)
1. PIOUSE JOHN, KUNNASSERIL HOUSE,
... Petitioner
Vs
1. THOMAS JOHN, KUDUMBAKUZHIYIL VEEDU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.NIREESH MATHEW
For Respondent :SRI.N.N.ELAYATH
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :28/09/2010
O R D E R
P.Q. BARKATH ALI, J.
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CRL. R.P. 103 of 2004
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Dated: SEPTEMBER 28, 2010
ORDER
This revision is by the accused in S.T.No.124/1997 on the file of
the JFCM Court, Ettumanoor. He was convicted under sec.138 of the
Negotiable Instruments Act and sentenced to undergo simple
imprisonment for three months and to pay a compensation of Rs.3
lakhs to the complainant by the judgment of the learned Magistrate
dated October 11, 2002. On appeal by the accused the Sessions
Court, Kottayam, by judgment dated November 10, 2003 in Crl.A.
432/2002 confirmed his conviction and sentence.
2. The case of the revision 1st respondent/complainant as
testified by him as PW.1 and as stated in the complaint before the trial
court in brief is this: The revision petitioner/accused borrowed
Rs.2,50,000/- from him and to discharge that liability issued the
cheque Ext.P3 dated November 2, 1996 which, when presented for
collection, was returned dishonoured for want of sufficiency of funds
in the account of the accused in the bank. In spite of the notice Ext.P7
dated November 20, 1996, the accused did not repay the amount.
Therefore the complainant filed the complaint under sec.138 of the
Negotiable Instruments Act before the trial court.
CRRP 103/2004
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3. The learned Magistrate, on receipt of the complaint,
recorded the sworn statement of the complainant/PW.2 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. PWs.1 and 2 were 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 transaction and submitted that the cheque was got
executed from him under threat. On the side of the accused DWs.1 to
3 were examined and Exts.D1 and D2 were marked.
4. On an appreciation of evidence the learned Magistrate found
the accused guilty of the offence punishable under sec.138 of the
Negotiable Instruments Act, convicted him thereunder and sentenced
him as aforesaid. On appeal by the accused the learned Sessions
Judge confirmed his conviction and sentence. The accused has now
come up in revision challenging his conviction and sentence.
5. Heard the counsel for the revision petitioner/accused and
the revision 1st respondent/complainant.
6. The following points arise for consideration:-
I. Whether the conviction of the revision petitioner by the
trial court under sec.138 of the Negotiable Instruments
Act, which is confirmed in appeal, can be sustained?
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II. Whether the sentence imposed is excessive or unduly
harsh?
POINT NO.I
7. The revision 1st respondent/complainant as PW.2 testified
in terms of the complaint before the trial court. Nothing was brought
out in his cross-examination to discredit his evidence. His evidence
is supported by PW.1, the Bank Manager, and Exts.P1 to P8.
8. The case of the revision petitioner/accused before the trial
court was that the cheque was obtained from him under coercion.
To prove his case, he examined DWs.1 to 3. DW.1 is a friend of the
accused and DWs.2 and 3 are the police officials to whom he filed the
complaint. The trial court as well as the lower appellate court have
rejected their evidence. On going through their evidence, I find no
reason to come to a different conclusion. Further, as the accused has
admitted the execution of the cheque Ext.P3, the presumption under
secs.118 and 139 of the Negotiable Instruments Act is available for
the complainant. No satisfactory evidence was adduced by the
accused to rebut the said presumption. Therefore I am of the view
that the trial court as well as the lower appellate court are perfectly
justified in accepting the evidence of the complainant and coming to
the conclusion that the accused has committed an offence punishable
under sec.138 of the Negotiable Instruments Act. Therefore the
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conviction of the accused under sec. 138 of the Negotiable
Instruments Act is confirmed.
POINT No.II
9. The trial court sentenced the accused to undergo simple
imprisonment for three months and to pay a compensation of Rs.3
lakhs. Taking into consideration the fact that the transaction is of the
year 1996 and that the accused and the complainant are close
relatives, I feel that the fine of Rs.3 lakhs alone would meet the ends
of justice.
10. In the result, the conviction and sentence of the revision
petitioner/accused under Sec.138 of the Negotiable Instruments Act
is confirmed. The sentence is modified to the effect that the accused
is sentenced to pay a fine of Rs.3 lakhs, in default to undergo simple
imprisonment for three months. The fine amount, if realised, shall be
paid to the complainant as compensation as provided under Sec.357
(1) Cr.P.C. Time is granted upto 31.12.2010 for payment of fine.
His bail bonds are cancelled.
The Crl.R.P. is disposed of as found above.
P.Q. BARKATH ALI, JUDGE
mt/-