Kerala High Court
Sri.M.Abdul Kareem vs M.K.Ravindran on 25 January, 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 25TH DAY OF JANUARY 2012/5TH MAGHA 1933
CRRP.No. 785 of 2006 ( )
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CRA.343/2004 of II ADDL.SESSIONS COURT, KOZHIKODE DIVISION
CC.9/2002 of J.M.F.C.,NADAPURAM
REVISION PETITIONER(S)/APPELLANT/ACCUSED.:
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SRI.M.ABDUL KAREEM, FEMINAZ HOUSE,
MUZHUPPILANGADE P.O. KULAM BAZAR,
THALASSERY TALUK.
BY ADV. SRI.K.A.SALIL NARAYANAN
RESPONDENTS/RESPONDENTS/COMPLAINANT(S)AND STATE.:
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1. M.K.RAVINDRAN, S/O.KRISHNA KURUP,
METHALE MELAYIKANDY VEEDU,
AROOR P.O., VADAKARA.
2. STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
R,R1 BY ADV. SRI.MOHANAN V.T.K.
R,R2 BY P.P. SRI NOUSHAD THOTTATHIL
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 25-01-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
P. Q. BARKATH ALI, J.
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Crl.R.P. No. 785 OF 2006
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Dated this the 25th day of January, 2012
O R D E R
Revision petitioner is the accused in C.C.No.9/2002 on the file of the Judicial Magistrate of the First Class, Nadapuram and the appellant in Crl.A.No. 343/2004 on the file of the Court of Session, Kozhikode Division.
2. The revision petitioner was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo imprisonment for three months and to pay a compensation of `45,000/- to the complainant, in default to undergo simple imprisonment for one month by the trial court by judgment dated April 26, 2004. The lower appellate court by judgment dated October 1, 2005 confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence.
3. The case of the 1st respondent/complainant, as testified by PWs.1 and 2 before the trial court and as detailed in the complaint, is this:- The accused borrowed CRRP 785/2006 2 `45,000/- from the complainant and to discharge that liability, the accused issued cheque Ext.P1 dated November 3, 2001, drawn on the Tellichery Public Servants Co- operative Bank Ltd., which when presented for encashment was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of notice Ext.P3, the accused did not re-pay the amount. Therefore, the complainant filed the complaint under section 138 of the Negotiable Instruments Act before the trial court.
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 learned Magistrate, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P7 were marked on the side of the prosecution. 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.
CRRP 785/2006 3
5. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence.
6. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent.
7. The following points arise for consideration :-
1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act can be sustained?
2) Whether the sentence imposed is excessive or unduly harsh?
8. Point No.1:- The complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by PW2 Manager of the Purameri Servie Co-operative Bank, CRRP 785/2006 4 Thanneerpanthal Branch through which PW1 presented the cheque for encashment and Exts.P1 to P7.
9. The case of the accused was that the complainant gave `10,000/- to the brother-n-law of the accused for arranging a VISA and at that time a blank signed cheque was issued by the accused to the complainant as security, which was misused by the complainant and created Ext.P1. No evidence was adduced by the accused to prove his case before the trial court. Further, as the issuance of Ext.P1 cheque was admitted by the accused, presumption as envisaged under sections 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.
10. For all these reasons, I hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PWs.1 and 2 and coming to the conclusion that the accused has committed the offence punishable under section 138 of the Negotiable Instruments CRRP 785/2006 5 Act. His conviction thereunder is confirmed.
11. Point No.2:- As regards the sentence, the trial court imposed a sentence of imprisonment for three months and to pay a compensation of `45,000/- to the complainant, in default to undergo simple imprisonment for one month, which was 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 imprisonment till the rising of court and to pay a compensation of `45,000/-to the complainant with default sentence would meet the ends of justice.
12. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under section 138 of the Negotiable Instruments Act is confirmed. Sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of `50,000/- to the complainant, in default to undergo simple imprisonment for one month. The revision petitioner shall surrender before the trial court on or before CRRP 785/2006 6 15-3-20102 to suffer the sentence. Time is granted for payment of compensation till then. His bail bonds are cancelled.
P. Q. BARKATH ALI, JUDGE.
mn.