Criminal Revision Petition No. 3843 of 2006 · Kerala High Court

CRL.RP.3843/06 :1:P.Q.BARKATH ALI, J.= = = = = = = = = = = = = = = = =CRL.RP.No.3843 of 2006= = = = = = = = = = = = = = = = =Dated this the 16th day of March, 2012

O R D E R1.The revision petitioner is the accused in S.T. Case No.308 of 2005 on the file of the Judicial First Class Magistrate-VII, Thiruvananthapuram and the appellant in Crl.A.No.217 of 2006 on the file of the Sessions Court, Thiruvananthapuram.

The revision petitioner/accused was convicted under section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for a period of three months and to pay compensation of Rs.50,000/- to the complainant, in default to undergo simple imprisonment for one month by the learned Magistrate by judgment dated February 20, 2006. The learned Sessions judge on the appeal by the accused confirmed his conviction and sentence by judgment dated August 23, 2006. The accused has come up in revision challenging his conviction and sentence. CRL.RP.3843/06 :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, in brief, is this:- The accused borrowed Rs.50,000/- from the complainant for doing Copra business and to discharge that liability, the accused issued Ext.P1 cheque dated March 15, 2001 which when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of notice Ext.P4 dated June 12, 2001 the accused did not repay the amount. Therefore, the complainant filed the complaint before the High Court under section 138 of the Negotiable Instruments Act. 4. 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 of a charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and he produced Ext.P1 to P7 before the trial court. When the accused was questioned under section 313 of Cr.P.C. by the learned CRL.RP.3843/06 :3:Magistrate, the accused denied the entire transaction. No defense evidence was adduced.

On an appreciation of evidence, the learned Magistrate found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. In appeal by the accused, the learned Sessions judge confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence.

Heard the counsel for the revision petitioner and the counsel for the revision first respondent/complainant.

The following points arise for consideration:- (1)Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act rendered by the trial court which was confirmed in appeal can be sustained? (2)Whether the sentence imposed is excessive of unduly harsh ? CRL.RP.3843/06 :4:

The complainant as PW1 testified in a convincing manner in the trial court regarding the transaction. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by Ext.P1 to P7.

The case of the accused, when questioned under section 313 of the Cr.P.C. by the learned Magistrate, was of total denial. In Ext.P7 reply notice, the accused has admitted the transaction and the issuance of Ext.P1 cheque, but, he stated that a blank signed cheque was issued to PW1 when he borrowed Rs.19,000/- from PW1 which was misused by PW1 and created Ext.P1. No evidence was adduced by the accused to prove his case.

That apart, as the accused admits the execution of Ext.P1 cheque, presumption as envisaged under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. CRL.RP.3843/06 :5:

For all these reasons, I am of the view that the trial court as well as the lower appellate court is justified in accepting the evidence of PW1 and holding that the revision petitioner/accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. Therefore, his conviction thereunder is confirmed.

As regards sentence, the learned Magistrate imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs.50,000/-, which is confirmed in appeal by the lower appellate court. Taking into consideration, the fact that the transaction is of the year 2001, I feel that a sentence of simple imprisonment till the rising the court and direction to pay a compensation of Rs.50,000/- to the complainant, with default sentence would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of revision petitioner under section 138 of the Negotiable Instruments Act rendered by the trial court which was confirmed in CRL.RP.3843/06 :6:appeal by the lower appellate court is upheld. The sentence is modified to the effect that he is sentenced to undergo simple imprisonment till rising of the court and to pay a compensation of Rs.50,000/-, in default to undergo simple imprisonment for one month. Two months' time is granted for the payment of compensation. The revision petitioner/accused shall surrender before the trial court on or before April 15, 2012 to suffer the sentence. His bail bonds are cancelled. Sd/- P.Q.Barkath Ali, Judge//TRUE COPY//P.A.TO JUDGEnk