Kerala High Court
Thomas Thomaskutty vs Vijayakumari on 20 January, 2011
Author: P.Q.Barkath Ali
Bench: P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3227 of 2004()
1. THOMAS THOMASKUTTY,
... Petitioner
Vs
1. VIJAYAKUMARI,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.LIJU.V.STEPHEN
For Respondent :SRI.C.P.PEETHAMBARAN
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :20/01/2011
O R D E R
P.Q.BARKATH ALI, J.
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Crl..R.P NO.3227 OF 2004
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Dated this the 20th day of January, 2011
O R D E R
Revision petitioner is the accused in C.C.No.805/1999 of Judicial First Class Magistrate Court I, Pathanamthitta and appellant in Crl.Appeal No.137/2002 of Sessions Court, Pathanamthitta. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs. 50,000/- to the complainant, in default to undergo simple imprisonment for three months by the learned Magistrate by judgment dated June 11, 2002. On appeal by the accused the learned Sessions Judge confirmed his conviction, but modified the sentence to imprisonment till the rising of Court and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for two months'. The direction of the learned Magistrate to pay a compensation of Rs.50,000/- to the complainant was maintained. The accused has now come up in revision challenging his conviction and sentence.
2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as stated in the complaint in brief is this: Crl..R.P NO.3227 OF 2004 2
Accused borrowed Rs.50,000/- from the complainant and to discharge the liability he issued Ext.P2 cheque dated March 10, 1999 for the said amount which when presented for encashment was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated May 13, 1999, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the complainant filed the complaint before the trial Court.
3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant (PW1) and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P6 were marked on the side of the complainant. The opinion of the Handwritten Expert was marked as Ext.C1. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced.
4. The learned Magistrate on an appreciation of evidence, found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder Crl..R.P NO.3227 OF 2004 3 and sentenced him as aforesaid. On appeal by the accused, the learned Sessions Judge confirmed his conviction, but modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence.
5. Heard the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant.
6. The following points arise for consideration :
1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ?
2) Whether the sentence imposed is excessive or unduly harsh ?
Point No.1
7. The complainant as PW1 testified in terms of the compliant in a convincing manner before the trial court. I have gone through her evidence. No serious discrepancies or inconsistencies have been brought out in cross examination. Further, her evidence is supported by Exts.P1 to P8 and Ext.C1.
8. The case of the accused as stated by him when questioned under Section 313 Cr.P.C by the learned Magistrate was that he has Crl..R.P NO.3227 OF 2004 4 borrowed Rs.40,000/-from the husband of the complainant on four occasions and issued four cheques in favour of the husband of the complainant and utilising one of those cheques, the complainant has created Ext.P2 cheque. There is no force in the above contention. No evidence was adduced by the accused to prove his case. Further Ext.C1 report of the expert shows that the cheque was drawn by the accused himself which falsifies the case of the accused that he has not issued Ext.P2. That apart, as the issuance of Ext.P2 by the accused is proved, the presumptions available under Sections 118 and 139 of the Act are available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption.
9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act.
Point No.2 Crl..R.P NO.3227 OF 2004 5
10. As regards the sentence, the learned Magistrate imposed a sentence of simple imprisonment for six months and to pay a compensation of Rs.50,000/- to the complainant, in default to undergo simple imprisonment for a further period of three months. The learned Sessions Judge modified the sentence to imprisonment till the rising of the court and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for two month's. The order to pay compensation to the complainant was sustained. The transaction is of the year 1999. Therefore, a lenient view is taken. Sentence imposed by the lower appellate court, i.e., the imprisonment till the rising of court, is sustained. The direction to pay compensation with default sentence ordered by the Magistrate which is confirmed in appeal, is also sustained. The sentence to pay a fine of Rs.5,000/- imposed by the lower appellate court is set aside.
In the result, the revision petition is allowed in part as found above.
The revision petitioner shall surrender before the trial court on or before 28.2.2011 to suffer his sentence. His bail bonds are cancelled. Crl..R.P NO.3227 OF 2004 6 Two moths' time is granted for payment of compensation.
P.Q.BARKATH ALI, JUDGE mns