Kerala High Court
Sabu Varghese vs Mannamplakkal George M.Thomas on 15 February, 2012
Author: P. Q. Barkath Ali
Bench: P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2012/26TH MAGHA 1933
Crl.Rev.Pet.No. 396 of 2003 ( )
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CRA.93/1999 of D.C.& SESSIONS COURT,MANJERI
ST.210/1999 of C.J.M.,MANJERI
REVISION PETITIONER(S)/APPELLANT/ACCUSED::
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SABU VARGHESE, S/O. VARGHESE,
MARAMPADATH, POST CHITTADI, KOTTAYAM DISTRICT
MUNDAKKAYAM POLICE STATION LIMIT.
BY ADVS.SRI.LIJI.J.VADAKEDOM
SRI.P.VIJAYA BHANU
SRI.P.M.RAFIQ
COMPLAINANT(S)/RESPONDENTS/COMPLAINANT & STATE::
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1. MANNAMPLAKKAL GEORGE M.THOMAS,
MANJERI AMSOM, KARUVAMBRAM DESOM, P.O. MANJERI
(MANJERI POLICE STATION LIMIT).
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R, BY PUBLIC PROSECUTOR SRI.NOUSHAD THOTTATHIL
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
15-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P. Q. BARKATH ALI, J.
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Crl.R.P. No. 396 of 2003
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Dated this the 15th day of February, 2012
O R D E R
Revision petitioner is the accused in S.T.No.210 of 1994 on the file of the Chief Judicial Magistrate Court, Manjeri and the appellant in Crl.A.No. 93/19999 on the file of the Sessions Court, Manjeri.
2. The revision petitioner was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs. Rs.50,000/- in default to undergo simple imprisonment for a further period of three months by the learned Magistrate by judgment dated June 5, 1999. On appeal by the accused, the lower appellate court confirmed his conviction but modified the sentence to simple imprisonment for three months and to pay a compensation of Rs.42,000/-, in default to undergo simple imprisonment for a further period of three months. The accused has now come up in revision challenging his conviction and sentence.
Crl.R.P. No. 396 of 2003 2
3. The case of the revision 1st respondent/complainant, as testified by him as PW1 before the trial court and as detailed in the complaint, in brief, is this:- Accused borrowed Rs.41,000/- from the complainant on July 10, 1994 and to discharge that liability he issued the cheque Ext.P1 dated August 14, 1994, drawn on the Parathode Branch of Catholic Syrian Bank, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P5 dated September 7, 1994, the accused did not re-pay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act.
4. On receipt of the complaint, the trial court recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and he examined PWs.2 Crl.R.P. No. 396 of 2003 3 and 3 and marked Exts.P1 to P6. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. No defence evidence was adduced.
5. The trial court, on an appreciation of evidence, found the accused guilty of the offence punishable under section 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 modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence.
6. Heard the learned counsel for the revision petitioner and the learned counsel for the second respondent.
7. The following points arise for consideration :-
1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court can be sustained?Crl.R.P. No. 396 of 2003 4
2) Whether the sentence imposed is excessive or unduly harsh?
8. The complainant as PW1 testified in terms of his complaint. Nothing was brought out during his cross- examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P6 and PWs.2 and 3.
9. The case of the accused when questioned under Section 313 Cr.P.C in brief is this: He was working as sub- broker in Stocks and Shares in 1992 at Mundakkayam. In May 1992 the complainant and his brother Renjith George advanced Rs.58,500/- to him to purchase stock and share certificates in the name of Treesa Mini George, who is the sister of the wife of PW1. The accused gave share certificate of S.R.Gujarat Ltd., for Rs.17,500/- and for the balance amount as requested by Treesa Mini George accused gave a blank signed cheque as security. Later shares were purchased for her and the said Treesa Mini George promised to destroy the cheque, but misusing that cheque complainant has filed this complaint.
Crl.R.P. No. 396 of 2003 5
10. But no evidence was adduced by the accused to prove his case. He has not even cared to send a reply to the notice of the complainant. He has also not chosen to examine himself as a witness to prove his case. The evidence of PW1 coupled with Ext.P1 to P6 to prove the execution of Ext.P1 cheque by the accused. Therefore presumption as envisaged under Section 118 and 139 of the Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption.
11. For all these reasons, I am inclined to hold that both the courts below are justified in accepting the evidence of PW1 and holding that accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act and convicting him thereunder. Therefore his conviction thereunder is confirmed.
12. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs.50,000/- in default to undergo simple Crl.R.P. No. 396 of 2003 6 imprisonment for three months. Out of fine amount Rs.41,000/- was ordered to be paid as compensation to the complainant. The lower appellate court modified the sentence to simple imprisonment for three months and a compensation of Rs.42,000/- in default undergo simple imprisonment for three months. The transaction is of the year 1994. Therefore a lenient view is taken. Taking into consideration all these aspects, I feel that sentence of imprisonment till the rising of court and a compensation of Rs.45,000/- to the complainant would meet the ends of justice.
In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act which was confirmed in appeal by the lower appellate court is upheld. The sentence is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.45,000/- to the complainant, in default to undergo simple imprisonment for Crl.R.P. No. 396 of 2003 7 two months. The amount already deposited before the trial court by the accused shall be adjusted towards the compensation ordered. The accused is permitted to pay the compensation amount direct to the complainant and to produce the receipt before the trial court. PW1 is permitted to withdraw the amount deposited by the accused before the trial court. The accused need pay only the balance amount. His bail bonds are cancelled. The accused shall surrender before the trial court on or before March 15, 2012 to suffer the sentence.
P. Q. BARKATH ALI, JUDGE.
pm.