IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2826 of 2004(C)
1. T.K.BALAN, S/O.APPU,
... Petitioner
Vs
1. A.PADMANABHAN, S/O.KARUNAKARAN,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SRI.SUNNY MATHEW
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :16/11/2010
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.2826 OF 2004
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Dated this the 16th day of November, 2010
ORDER
Revision petitioner is the accused in C.C.No.285/1999 on the file
of Judicial First Class Magistrate Court V, Kozhikode and appellant in
Crl.Appeal No.689/2001 of Sessions Court, Kozhikode. He was
convicted under Section 138 of Negotiable Instruments Act and was
sentenced to undergo simple imprisonment for three months by the
learned Magistrate by judgment dated November 29, 2001. On appeal,
by judgment dated September 13, 2004, the lower appellate court
confirmed his conviction, but modified the sentence to simple
imprisonment for one month and to pay a compensation of Rs. 25,000/-
to the complainant, in default, to undergo simple imprisonment for a
further period of one month. The accused has now come up in revision
challenging his conviction and sentence.
2. The case of the revision first respondent/complainant as
testified by him as PW1 before the trial court and as detailed in the
complaint was that accused borrowed Rs. 25,000/- from him on
Crl.R.P.No.2826/2004 2
October 15, 1999 and to discharge that liability, he issued the cheque
Ext.P1 dated November 21, 1998 which when presented for collection
was returned dishounoured for want of sufficiency of funds in the
account of the accused in the bank and that in spite of notice Ext.P3,
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. PW 1 was examined and Exts.P1 to P6 were marked
on the side of the complainant. When questioned under Section 313 of
Cr.P.C., the accused denied the entire transaction. Accused himself
was examined as DW1 before the trial court.
4. The learned Magistrate 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, the lower appellate court
confirmed his conviction, but modified the sentence as mentioned
Crl.R.P.No.2826/2004 3
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. Complainant as PW1 testified in a convincing manner
before the trial court regarding the transaction. Nothing was brought
out during his cross examination to disbelieve his evidence. Further his
evidence is supported by Exts.P1 to P6.
8. The specific case of the accused as testified by him as DW1
before the trial court was that it is true that he has borrowed
Rs. 25,000/- from the complainant and issued Ext.P1, but he has
already paid some amount in discharge of that liability and only
Rs. 9,700/- is due to the complainant from him. But no document is
Crl.R.P.No.2826/2004 4
produced to prove his plea of partial discharge. Therefore, in my view,
both the courts below are justified in rejecting the above case of the
accused. Further, as the execution of Ext.P1 cheque was admitted by
the accused, presumption as envisaged under Section 118 and 139 of
Negotiable Instruments Act is available to the complainant. No reliable
evidence was adduced by the accused to rebut the above presumption.
9. For all these reasons, I am of the view that the trial court as
well as the lower appellate court are perfectly justified in accepting the
evidence of PW1 and finding 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
10. As regards the sentence, it is admitted that in respect of the
same transaction, a suit was filed by the complainant and the same was
settled on condition that the accused will pay the amount due to the
complainant in this case. Therefore, a lenient view is taken and I feel
that a sentence of imprisonment till the rising of court and a
compensation of Rs. 25,000/- with default sentence would meet the
Crl.R.P.No.2826/2004 5
ends of justice.
In the result, revision petition is allowed in part. The conviction
of the revision petitioner under Section 138 of Negotiable Instruments
Act is confirmed. The sentence is modified to the effect that revision
petitioner is sentenced to undergo imprisonment till the rising of court
and to pay a compensation of Rs. 25,000/- to the complainant, in
default to undergo simple imprisonment for one month. The amount,
if any, deposited by the revision petitioner before the trial court shall be
adjusted towards the compensation amount ordered to be paid. The
complainant is permitted to withdraw that amount. Two month’s time is
granted for payment of the balance amount of compensation. The
revision petitioner is permitted to pay the balance amount of
compensation direct to the complainant and produce memo before the
trial court. The revision petitioner shall surrender before the trial court
on or before 20/12/2010 to receive the sentence. His bail bonds are
cancelled.
P.Q.BARKATH ALI
JUDGE
sv.
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