Kerala High Court
Thomas Daniel vs Roy.M.George on 16 November, 2010
Author: P.Q.Barkath Ali
Bench: P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3262 of 2004(C)
1. THOMAS DANIEL, S/O.IDICHANDI DANIEL,
... Petitioner
Vs
1. ROY.M.GEORGE, THAZHEKAITHAKAL HOUSE,
... Respondent
2. STATE OF KERALA, REP. BY
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent :SRI.MVS.NAMBOOTHIRY
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :16/11/2010
O R D E R
P.Q.BARKATH ALI, J.
- - - - - - - - - - - - - - - - - - - - -
Crl.R.P.No.3262 OF 2004
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 16th day of November, 2010
ORDER
Revision petitioner is the accused in C.C.No.499/1997 on the file of Chief Judicial Magistrate's Court, Pathanamthitta and appellant in Crl.Appeal No.108/1999 of Addl. Distrit and Sessions (Adhoc) Fast Track Court II, 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 fine of Rs. 1,55,000/- in default to undergo simple imprisonment for a further period of three months by the learned Magistrate by judgment dated June 30, 1999. Out of the fine amount, if realised, Rs. 1,50,000/- was ordered to be paid to the complainant as compensation under Section 357 Cr.P.C. On appeal by the accused, his conviction and sentence was confirmed by the lower appellate court by judgment dated May 3, 2004. 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 detailed in the complaint is this:
Crl.R.P.No.3262/04 2
Accused issued the cheque Ext.P1 dated July 21, 1997 for Rs. 1,50,000/- due to the complainant which when presented for collection 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 September 27, 1997, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act.
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. Pws 1 to 3 were examined and Exts.P1 to P10 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the case of the accused was that a signed blank cheque was given to PW1 in connection with timber transaction and the same was misused by PW1 and created Ext.P1. On his side, Ext.D1 was marked.
4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Crl.R.P.No.3262/04 3 Section 138 of Negotiable Instruments Act , convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. 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. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P10 and PW2, the Manager of the bank as well as PW3, a witness to the transaction.
8. The specific case of the accused was that a signed blank cheque was given to PW1 in connection with timber transaction which Crl.R.P.No.3262/04 4 was misused by PW1 and created Ext.P1. No evidence was adduced by the accused to prove the same. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption.
9. Counsel for the revision petitioner argued that non-payment of amount due under the cheque was not put to the accused when questioned under Section 313 Cr.P.C. by the learned Magistrate which has caused much prejudice and therefore the lower appellate court should have remanded the case to the trial court to cure that defect.
10. There is no substance in the above contention. Either in Ext.P7 reply notice or at the time of examination of PW1, the accused had no case that he has paid any amount to the complainant. Therefore, no prejudice is caused to the accused even though such a question is not put to the accused by the learned Magistrate while questioning under Section 313 Cr.P.C. Therefore, I find no merit in the above contention of the revision petitioner.
Crl.R.P.No.3262/04 5
11 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
12. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs. 1,55,000/-, in default to undergo simple imprisonment for a further period of three months. Out of the fine amount, if realised, Rs.1,50,000/- was directed to be paid to the complainant as compensation. The above sentence was confirmed by the lower appellate court. As the transaction is of the year 1997, a lenient view is taken and I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.1,50,000/- with default sentence would meet the ends of justice.
In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Crl.R.P.No.3262/04 6 Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 1,50,000/-, in default to undergo simple imprisonment for a further period of three months. The revision petitioner is directed to pay the compensation ordered to be paid direct to the complainant and produce voucher before the trial court. The amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation amount ordered to be paid. The complainant is permitted to withdraw that amount. Three months' time is granted to the revision petitioner to pay the balance amount of compensation. The revision petitioner shall surrender before the trial court on or before February 16, 2011 to receive the sentence. His bail bonds are cancelled.
P.Q.BARKATH ALI JUDGE sv.
Crl.R.P.No.3262/04 7