IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2398 of 2004(D)
1. SIVADAS, S/O.NANU.P.V.,
... Petitioner
Vs
1. PRABHAKARAN, KANDATHIL PARAMBU,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.V.V.RAJA
For Respondent :SRI.JOHN BRITTO
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :21/01/2011
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P. No. 2398 of 2004
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Dated this the 21st day of January, 2011
O R D E R
Challenge in this revision petition by the accused is to
the judgment dated November 30, 2002 in C.C.No.129 of 2001
on the file of the Judicial Magistrate of the First Class,
Ambalappuzha convicting him under section 138 of the
Negotiable Instruments Act and sentencing him to undergo
simple imprisonment for six months by the learned Magistrate
by judgment dated November 30, 2002, which was confirmed
in appeal by the Sessions Court by judgment dated July 7,
2004. Now the accused has come up in revision challenging his
conviction and sentence.
2. The case of the complainant/1st respondent, as testified
by him as PW1 before the trial court and as stated in the
complaint, was that the accused/revision petitioner borrowed
Rs.50,000/- from him and to discharge that liability the
accused issued Ext.P1 cheque dated July 15, 2000 for the said
amount drawn on the Aluva Branch of Federal Bank Ltd. which
Crl.R.P. No. 2398/2004 2
when presented for collection was returned dishonoured for
want of sufficiency of funds in the account of the revision
petitioner/accused in the bank and that in spite of Ext.P4
notice dated January 17, 2001, the accused/revision petitioner
did not repay the amount. Therefore, the complainant filed the
complaint before the trial court under section 138 of the
Negotiable Instruments Act.
3. The learned Magistrate, on receipt of the complaint,
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 the charge under section
138 of the Negotiable Instruments Act. The complainant was
examined as PW1 and Exts.P1 to P7 were marked on the side
of the prosecution. When questioned under section 313 of
Cr.P.C. by the learned Magistrate, the accused submitted that
he had taken a loan from Federal Bank for which one Vasanthi
Vijayasingh, who is none other than the aunt of the
complainant, stood as surety, that as security, he issued 6
signed blank cheque leaves to said Vasanthi Vijaysingh and
Crl.R.P. No. 2398/2004 3
that the complainant misused one of those cheque leaves and
created Ext.P1 cheque. Ext.D1 was marked on the side of the
defence.
4. The trial court, on an appreciation of the evidence,
found the accused guilty of the offence punishable under
section 138 of the Negotiable Instruments Act, convicted him
thereunder and sentenced him as aforesaid, which was
confirmed in appeal by the Sessions Court. Now the accused
has come up in revision challenging his conviction and
sentence.
5. Heard learned counsel for the revision petitioner and
learned counsel for the 1st respondent .
6. The following points arise for consideration :
1) Whether the conviction of the revision petitioner
under section 138 of the Negotiable Instruments
Act rendered by the trial court which was
confirmed in appeal can be sustained ?
2) Whether the sentence imposed on the revision
petitioner/accused is excessive or unduly harsh ?
7. The complainant as PW1 testified in a convincing
manner before the trial court regarding the transaction.
Crl.R.P. No. 2398/2004 4
Nothing was brought out during cross-examination to discredit
his evidence. During the cross-examination he has
emphatically denied the suggestion that he has misused any
signed blank cheque. Further his evidence is supported by
Exts.P1 to P7.
8. The case of the revision petitioner/accused, as stated
by him when questioned under section 313 by the learned
Magistrate, was that for the loan availed of by him from the
Aluva Branch of Federal Bank Ltd. one Vasanthi Vijayasingh
stood as surety and as security he issued six blank signed
cheques to her, that the complainant obtained one of those
cheque from her who is the aunty of the complainant and
created Ext.P1. But no evidence was adduced by the accused
to prove his case.
9. Learned counsel for the revision petitioner/accused
pointed out that the complainant during cross-examination
admitted that he has obtained cheque Ext.P1 from Vasanthi
Vijayasingh. There is no substance in the above contention. On
going through the cross-examination of PW1, it is seen that
Crl.R.P. No. 2398/2004 5
there was no such admission made by PW1. He has admitted
that Vasanthi Vijayasingh is the aunt of his wife. Further no
evidence was adduced by the accused to prove his case that he
issued any blank signed cheques to the said Vasanthi
Vijayasingh. That being so, the above case put forward by the
accused cannot be believed. That apart the accused has
admitted issuance of Ext.P1 cheque, presumption envisaged
under sections 118 and 138 of the Negotiable Instruments Act
is available to the complainant. No reliable evidence was
adduced by the accused to rebut the above presumption. For
all these reasons, I am of the view that the trial court as well
as the appellate court have perfectly justified in accepting the
evidence of PW1 and coming to the conclusion that the
accused has committed the offence punishable under section
138 of the Negotiable Instruments Act and convicting him
thereunder.
10. As regards the sentence, the trial court imposed a
sentence of simple imprisonment for six months, which was
confirmed in appeal by the learned Sessions Judge. The
Crl.R.P. No. 2398/2004 6
transaction is of the year 2000. Therefore, a lenient view is
taken and I hold that the sentence of imprisonment till the
rising of court and to pay a compensation of Rs.50,000/-would
meet the ends of justice.
11. In the result, the revision petition is allowed in part.
The conviction of the revision petitioner/accused under section
138 of the Act rendered by the trial court, which was
confirmed in appeal is upheld. He is sentenced to undergo till
the rising of court and to pay compensation of Rs.50,000/- to
the complainant, in default to undergo simple imprisonment
for three months. His bail bonds are cancelled. Three months’
time is granted for payment of the compensation.
He shall surrender before the trial court on or before 28-
2-2011 to suffer the sentence.
P.Q.BARKATHALI, JUDGE
mn
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P.Q.BARKATH ALI, J.
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Crl.A.No. 2398 of 2004
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JUDGMENT
21st January,2011