IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 628 of 2002()
1. VASU, S/O.ARUMUGHAN,
... Petitioner
Vs
1. SHAMSUDHEEN, S/O.ASSAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.SUNNY MATHEW
For Respondent :SRI.K.SURENDRA MOHAN
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :09/12/2009
O R D E R
P.Q. BARKATH ALI, J.
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CRL. R.P. 628 of 2002
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Dated: DECEMBER 9, 2009
ORDER
The revision petitioner is the accused in C.C. No.250/1998 of
Judicial First Class Magistrate Court-I, Thamarassery, and the
appellant in Crl.A.296/1999 of Additional Sessions Court, Kozhikode
Division. He was convicted under sec.138 of the Negotiable
Instruments Act and was sentenced to undergo simple imprisonment
for one year and to pay a fine of Rs.30,000/-, in default to undergo
simple imprisonment for three months. Out of the fine amount, if
realised, Rs.15,000/- was ordered to be paid to the complainant as
compensation. On appeal by the accused his conviction was
confirmed, but the sentence was modified to the effect that he was
sentenced to undergo simple imprisonment for three months and to
pay a compensation of Rs.15,000/- to the complainant. Now the
accused has come up in revision challenging his conviction and
sentence.
2. The case of the revision 1st respondent/complainant as
testified by him as PW.4 before the trial court and as detailed in the
complaint is that PW.1 was employed under the accused as checking
inspector in the bus owned by the accused, that at that time the
accused obtained Rs.15,000/- from PW.1 as cash security, that when
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PW.1 retired from the job, towards Rs.15,000/- due to the
complainant from the accused, the accused issued the cheque Ext.P1
dated February 21, 1998 drawn on the Mukkam Service Co-operative
Bank, which, when presented for collection, was returned
dishonoured for want of sufficiency of funds in the account of the
revision petitioner in the bank and that in spite of the notice Ext.P6,
the accused did not repay the amount, which is an offence punishable
under sec.138 of the Negotiable Instruments Act.
3. On receipt of the complaint the trial court recorded the sworn
statement of the complainant/PW.4 and took cognizance of the case.
The accused on appearance before the trial court pleaded not guilty to
the charge under sec.138 of the Negotiable Instruments Act. PWs.1
to 5 were examined and Exts.P1 to P9 were marked on the side of the
complainant. When questioned under sec.313 Cr.P.C. by the trial
court, the accused denied the liability. No defence evidence was
adduced.
4. The trial court on an appreciation of evidence found the
revision petitioner 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 lower
appellate court confirmed his conviction, but reduced the substantive
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sentence to simple imprisonment for three months. He was also
directed to pay compensation of Rs.15,000/- to the complainant. The
accused has now come up in revision challenging his conviction and
sentence.
5. Heard counsel for the revision petitioner and the revision 1st
respondent.
6. The following points arise for consideration:-
I. Whether the conviction of the revision petitioner under
sec.138 of the Negotiable Instruments Act can be
sustained?
II. Whether the sentence imposed is excessive or unduly
harsh?
Point No.I
7. The complainant was examined as PW.4 and he produced
Exts.P1 to P9. The other witnesses are Bank Managers. PW.4 testified
in terms of the complaint. Nothing was brought out during his cross-
examination to discredit his evidence. His evidence is supported by
Exts.P1 to P9 and PWs.1, 2, 3 and 5.
8. When questioned under sec.313 Cr.P.C. by the trial court, the
accused denied the liability. No defence evidence was adduced. That
apart, the accused has admitted the issuance of the cheque Ext.P1.
Therefore the presumption under secs.118 and 139 of the Negotiable
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Instruments Act is available to the complainant. The accused did not
adduce any evidence to rebut the above presumption.
9. For all these reasons accepting the evidence of PW.1, I
hold that the trial court as well as the lower appellate court is justified
in finding that the accused has committed an offence punishable under
sec.138 of the Negotiable Instruments Act.
Point No.II
10. As regards the sentence, the trial court imposed a sentence
of simple imprisonment for one year and a fine of Rs.30,000/-, in
default to undergo simple imprisonment for three months. The lower
appellate court modified the sentence to undergo simple
imprisonment for three months and to pay a compensation of
Rs.15,000/- to the complainant.
11. The transaction is of the year 1998. Therefore I feel that
the substantive sentence can be reduced to simple imprisonment till
the rising of court and to pay a a fine of Rs.20,000/- would meet the
ends of justice.
In the result, the revision petition is allowed in part. The
conviction of the revision petitioner under sec.138 of the Negotiable
Instruments Act is confirmed. The sentence is modified to the effect
that he is sentenced to undergo imprisonment till the rising of court
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and to pay a fine of Rs.20,000/-, 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)
of Cr.P.C. If any amount is deposited by the revision petitioner before
the trial court, it shall be adjusted towards the fine amount. His bail
bonds are cancelled. One month time is granted for payment of fine.
The accused/revision petitioner shall surrender before the trial court on
or before 30.12.2009 to receive the sentence.
P.Q. BARKATH ALI, JUDGE
CRL.M.P.3903 of 2002
Dismissed.
9.12.2009. P.Q. BARKATH ALI, JUDGE
mt/-