M.O.KOYAKUTTY v. SMT.BHAVANA VELAYUDHAN

P.Q. BARKATH ALI, J-------------------------------------Crl. R.P. No. 3730 of 2006-----------------------------------------Dated this the 22nd day of March, 2012O R D E RThe revision petitioner is the accused in C.C. No. 142/2004on the file of Judicial First Class Magistrate Court-, Tiruvalla andappellant in Crl. Appeal No.604/2005 of Additional Session CourtFast Track II, Alappuzha.2.He was convicted under Section 138 of NegotiableInstruments Act and was sentenced to undergo simpleimprisonment for three months and to pay a compensation ofRs. 46,138/- to the complainant, in default to undergo simpleimprisonment for a further period of three months. He was alsoordred to pay cost of Rs. 2,000/- to the complainant in default toundergo simple imprisonment for a further period of 15 days.On appeal by the accused the learned Sessions Judge byjudgment dated August 23, 2006 confirmed his conviction andsentence. The accused has now come up in revision challenginghis conviction and sentence. Crl. R.P. No. 3730 of 200623.Complainant is M/s. Aswathi Detergents andChemicals, Sree Sai Lakshmy, Mullakkal, Alappuzha representedby its Proprietrix Shirly Sadanandan, through her Power ofAttorney holder, PW1. The case of the complainant as testifiedby PW1 before the trial court and as revealed in the complaint inbrief is this:- The complainant company is doing business inmaking and selling of detergent products. Accused is a retailer inconsumer products. The accused purchased detergent powderfrom the complainant as per invoice numbers 475 and 476 datedJanuary 18, 2004 for Rs. 46,138/- and to discharge that liabilityaccused issued the cheque Ext.P1 dated January19, 2004 drawnon the South Malabar Gramin Bank. When the cheque waspresented for collection it was returned dishonoured for want ofsufficiency of fund in the account of the accused in the bank.Inspite of the notice Ext. P3 dated February 14, 2004 the accuseddid not repay the amount. Therefore, complainant has filed thecomplaint under Section 138 of Negotiable Instruments Actbefore the trial court. Crl. R.P. No. 3730 of 200634. The learned Magistrate on receipt of the complaintrecorded the sworn statement of the complainant and tookcognizance of the offence. The accused on appearance beforethe trial court pleaded not guilty to a charge under Section 138of Negotiable Instruments Act. The complainant was examined asPws 1 and Exts. P1 to P6 were produced by the complainant.When questioned under Section 313 Cr.P.C. accused submittedthat he had purchased detergent powder worth Rs. 32,000/- fromthe agent of the complainant company for which he has issued asigned blank cheque as security and that the complainant hasmisused that cheque and created Ext. P1. No defence evidencewas adduced.5.On an appreciation of evidence the learned Magistratefound the accused guilty of the offence punishable under Section138 of Negotiable Instruments Act, convicted him thereunder andsentenced him as aforesaid. On appeal by the accused thelearned Magistrate confirmed his conviction and sentence. Theaccused has now come up in appeal challenging his convictionand sentence. Crl. R.P. No. 3730 of 200646.Heard the counsel for the revision petitioner/accusedand the revision first respondent/complainant.7.The following points arise for consideration:-(1) Whether the conviction of the revision petitioner underSection 138 of Negotiable Instruments Act can be sustained?(2) Whether the sentence imposed is excessive or undulyharsh ?8. The complainant as PW1 testified in terms of complaintbefore the trial court. Nothing was brought out during his crossexamination to discredit his evidence. Further, his evidence issupported by Exts. P1 to P6. 9.The specific case of the accused when questionedunder Section 313 Cr.p.c. and as suggested during the crossexamination of PW1 was that, he has purchased detergentpowder worth Rs. 32,000/- from the agent of the complainantcompany and as security he has issued a signed blank cheque tothe agent, that accused has already discharged that liability, andthat misusing that cheque complainant created Ext. P1. But no Crl. R.P. No. 3730 of 20065evidence was adduced by the accused to prove his case. 10.There is another aspect in this case. As the accusedadmits the execution of the cheque Ext. P1 the presumption asenvisaged under Section 118 and 139 of Negotiable InstrumentAct is available to the complainant. Accused has failed to rebutthe above said presumption effectively. For all these reasons Iam inclined to hold that both the courts below are justified inrejecting the above case of the accused and accepting theevidence of PW1 and holding that accused is guilty of the offencepunishable under Section 138 of Negotiable Instruments Act.Therefore, I confirm his conviction thereunder.11.As regards the sentence the trial court sentenced himto undergo simple imprisonment for three months and to pay acompensation of Rs. 46,138/- in default to undergo simpleimprisonment for a further period of three months. Accused wasdirected to pay a cost of Rs. 2,000/- in default to undergo simpleimprisonment for 15 days. The learned Sessions Judge confirmedthe said sentence. As the transaction is of the year 2004 a lenient Crl. R.P. No. 3730 of 20066view is taken and I feel that a sentence of imprisonment tillrising of court and to pay compensation of Rs. 47,000/- wouldmeet the ends of justice 12.In the result revision petition is allowed in part.Conviction of the revision petitioner under Section 138 ofNegotiable Instruments Act is confirmed. The sentence ismodified to the effect that he is sentenced to undergoimprisonment till the rising of court and to pay compensation ofRs. 47,000/- to the complainant, in default to undergo simpleimprisonment for a further period of three months. His bailbonds are cancelled. He shall surrender before the trial court onor before April 30, 2012 to suffer the sentence. Two monthstime is granted for payment of compensation. P.Q. BARKATH ALI, JUDGE.dlk