Criminal Revision Petition No. 156 of 2004 · Kerala High Court · 2012

P. Q. BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=Crl.R.P. No. 156 of 2004=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=Dated this the 9th day of February, 2012O R D E RRevision petitioner is the accused in S.T.No.450/1998on the file of the Judicial Magistrate of the First Class-II,Thrissur and appellant in Crl.A.No.358/2001 on the file ofthe First Addl. Sessions Court, Thrissur. 2. The revision petitioner was convicted under section138 of the Negotiable Instruments Act and sentenced toundergo simple imprisonment for three months by thelearned Magistrate by judgment dated June 27, 2001. Onappeal by the accused, the learned Sessions Judge byjudgment dated July 18, 2003 confirmed his conviction butmodified the sentence to simple imprisonment for onemonth and to pay a compensation of Rs.70,000/- to thecomplainant, in default to undergo simple imprisonment forone more month. The accused has come up in revisionchallenging his conviction and sentence. CRRP 156/200423. The complainant is Thrissur Branch of Bank ofBaroda, represented by its Senior Branch Manager who wasexamined as PW1. The case of the complainant, as testifiedby PW1 before the trial court and as detailed in thecomplaint, in brief, is this:- The accused opened a SavingsBank Account in the complainant bank and had availed aBOBCARD. A sum of Rs.61,022.91 was overdrawn by theaccused and towards discharge of that liability he issuedExt.P2 cheque dated September 3, 1997, which whenpresented for encashment was dishonoured with theendorsement “not arranged for”. In spite of notice Ext.P4dated September 5, 1997, the accused did not repay theamount. Therefore, the complainant bank through PW1 filedthe complaint before the Chief Judicial Magistrate, Thrissur.The learned Chief Judicial Magistrate on receipt of thecomplaint, recorded the sworn statement of thecomplainant and took cognizance of the offence. Thereafter,the case was made over to the trial court. 4. The accused on appearance before the trial court, CRRP 156/20043pleaded not guilty to the charge under section 138 of theNegotiable Instruments Act. The Senior Branch Manager ofthe complainant bank was examined as PW1 and Exts.P1 toP6 were marked on the side of the complainant. When theaccused was questioned under section 313 Cr.P.C. by thelearned Magistrate, he stated that he has no account in theNedungadi bank to which Ext.P2 cheque was issued andthat he has not signed in Ext.P2 cheque. No evidence wasadduced by him to prove his case.5. The trial court, on an appreciation of the evidence,found the accused guilty of the offence punishable undersection 138 of the Negotiable Instruments Act, convictedhim thereunder and sentenced him as afore said. On appealby the accused, the lower appellate court confirmed hisconviction but modified the sentence as aforesaid. Theaccused has come up in revision challenging his convictionand sentence.6. Heard the learned counsel for the revisionpetitioner and the learned counsel for the first respondent. CRRP 156/200447. The following points arise for consideration:- 1) Whether the conviction of the revisionpetitioner under section 138 of theNegotiable Instruments Act can besustained?2) Whether the sentence imposed is excessiveor unduly harsh?8. PW1, the Senior Branch Manager of thecomplainant bank, testified in terms of the complaint beforethe trial court. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidenceis supported by Exts.P1 to P6. 9. The specific case of the accused when questionedunder section 313 Cr.P.C. by the learned Magistrate wasthat he has no account with the Nedungadi bank to whichExt.P2 cheque was allegedly issued and that he has notsigned in Ext.P2 cheque. PW2, the concerned Manager ofthe Nedungadi bank, testified that Ext.P2 cheque wasissued to the account maintained in that bank in the nameof 'Revathy Sales Corporation' and the accused as theManaging Partner of that firm was operating the account. It CRRP 156/20045is clear from the above, that version of PW2 that he has noaccount with the Nedungadi bank is not true. 10. Ext.P2 cheque was issued to Nedungadi bank. Thetrial court has compared the signature of the drawer inExt.P2 cheque with the admitted signature of the accusedin his 313 statement and in his vakalath, which were foundto be similar. It is clear from the above that Ext.P2 chequewas issued by the accused towards the amount due to thecomplainant bank. 11. That apart, as the execution of Ext.P1 cheque isproved, presumption as envisaged under sections 118 and139 of the Negotiable Instruments Act is available to thecomplainant. The accused did not adduce any evidence torebut the above presumption. Therefore, I am of the viewthat both the courts below are perfectly justified inaccepting the evidence of PW1 and holding that the accusedhas committed the offence punishable under section 138 ofthe Negotiable Instruments Act. 12. As regards the sentence, the trial court imposed a CRRP 156/20046sentence of simple imprisonment for three months. Thelower appellate court modified the sentence to simpleimprisonment for one month and directed the accused topay compensation of Rs.70,000/- .As the transaction is ofthe year 1997, a lenient view is taken and I feel that asentence of imprisonment till the rising of court and to paya compensation of Rs.75,000/- with default sentence wouldmeet the ends of justice. 13. In the result, the revision petition is allowed inpart. The conviction of the revision petitioner under section138 of the Negotiable Instruments Act which was confirmedin appeal by the lower appellate court is upheld. Thesentence is modified to the effect that the revisionpetitioner is sentenced to undergo imprisonment till therising of court and to pay a compensation of Rs.75,000/- tothe complainant, in default to undergo simple imprisonmentfor three months. His bail bonds are cancelled. Twomonths' time is granted for payment of the compensation.The revision petitioner/accused shall surrender before the CRRP 156/20047trial court on or before March 15, 2012 to suffer thesentence.P. Q. BARKATH ALI,JUDGE. mn.