IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1710 of 2002()
1. V.K. MOHANAN, AGED 50 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
2. K.M. ANTONY, CENTRAL POLICE STATION
For Petitioner :SRI.A.X.VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :30/11/2009
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P. No. 1710 of 2002
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Dated this the 30th day of November, 2009
O R D E R
Revision petitioner is the accused in C.C.No.2352 of 1998 of the
Chief Judicial Magistrate, Ernakulam and the appellant in Crl.A.No.547 of
2001 on the file of the IVth Addl. Sessions Court, Ernakulam. He was
convicted under section 138 of the Negotiable Instruments Act and
sentenced to undergo simple imprisonment for six months and to pay fine
of Rs.85,000/-, in default to undergo simple imprisonment for further period
of three months. Out of the fine amount, Rs.80,000/- was ordered to be paid
to the complainant as compensation, as provided under section 357(1)
Cr.P.C. On appeal, the lower appellate court confirmed his conviction and
sentence of fine, but modified the substantive sentence of rigorous
imprisonment of six months to simple imprisonment for three months.
Now the accused has come up in revision challenging his conviction and
sentence.
2. The case of the prosecution, as testified by the 2nd
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respondent/complainant as PW1 before the trial court and as detailed in the
complaint, was that the accused issued cheque Ext.P1 for Rs.80,000/- dated
September 17, 1998, drawn on the Union Bank of India, Marine Driver
Branch, which when presented for collection was returned dishonoured for
want of sufficiency of funds in the account of the accused in the bank, that
in spite of notice Ext.P5 dated September 21, 1998, the accused did not re-
pay the amount, which is an offence punishable under section 138 of the
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 the
charge under section 138 of the Negotiable Instruments Act. PW1 was
examined and Exts.P1 to P7(a) were marked on the side of the complainant.
When the accused was questioned under section 313 Cr.P.C. by the learned
Magistrate, he denied the entire transaction. He himself examined as DW1.
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
afore said. On appeal by the accused, the conviction and sentence of fine
were confirmed, but the substantive sentence was modified to simple
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imprisonment for three months. The accused has come up in revision
challenging his conviction and sentence.
5. Heard the learned counsel for the revision petitioner and the
learned counsel for the 2nd respondent.
6. The following points arise for consideration :-
1) Whether the conviction of the revision petitioner by the
trial court under section 138 of the Negotiable
Instruments Act, which was confirmed in appeal by the
lower appellate court, can be sustained?
2) Whether the sentence imposed against the revision
petitioner is excessive or unduly harsh?
7. Complainant himself was examined as PW1 and Exts.P1 to P7(a)
were marked on the side of the complainant to prove the guilt of the
accused. PW1 testified in terms of the complaint. I have gone through the
evidence of PW1. No serious discrepancies or contradictions are pointed
out to disbelieve his evidence. Further, his evidence is supported by
Exts.P1 to P7(a).
8. The case of the accused as testified by him as DW1 was that his
postal address shown in Ext.P3 notice is not correct and that therefore no
statutory notice is issued to him. The further case of the accused was that he
borrowed only Rs.70,000/-, that he issued cheque Ext.P1 and that the
amount of Rs.70,000/- was repaid to the complainant. There is no substance
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in the above contention. He has admitted in cross-examination that
previously he was residing at Mulavukad. He has also admitted in cross-
examination that his permanent place of residence is Mulavukad. In Ext.P7
postal receipt there was an endorsement to the effect that intimation was
served on the accused. Therefore, the above contention of the accused
cannot be accepted. As regards the contention of the accused that he
borrowed only Rs.70,000/-, no evidence is adduced by him to prove the
same. For all these reasons accepting the evidence of PW1, I am inclined to
hold that both the courts below are justified in convicting the accused under
section 138 of the Negotiable Instruments Act and I confirm the conviction.
9. As regards the sentence, the trial court has imposed a sentence of
rigorous imprisonment for six months and directed to pay a fine of
Rs.85,000/-, in default to undergo simple imprisonment for three months.
Out of the fine amount Rs.80,000/- was ordered to be paid to the
complainant as compensation. On appeal, the substantive sentence reduced
to simple imprisonment for three months and the sentence of fine was
maintained. The transaction was of the year 1998. Taking into consideration
all these aspects , I feel that sentence imprisonment till the rising of court
and fine of Rs.80,000/-, in default to undergo simple imprisonment for three
months would meet the ends of justice
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10. In the result, the revision petition is allowed in part. The
conviction of the revision petitioner/accused under section 138 of the
Negotiable Instruments Act, rendered by the trial court, which is confirmed
in appeal, is upheld. The sentence imposed on the revision petitioner is
modified to the effect that the revision petitioner is sentenced to undergo
imprisonment till the rising of the court and to pay fine of Rs.80,000/-, in
default to undergo simple imprisonment for three months. The fine amount,
if realized, shall be paid to PW1 as compensation, as provided under section
357(1) of the Cr.P.C.. His bail bonds are cancelled. Two months’ time is
granted for payment of fine.
The revision petitioner shall surrender before the trial court on or
before 30-12-2009 to receive the sentence.
P.Q.BARKATH ALI, JUDGE.
mn.
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P.Q.BARKATH ALI, J.
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Crl.R.P. No. 1710 of 2002
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O R D E R
30-11-2009