Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH DAY OF DECEMBER 2012 29TH AGRAHAYANA 193 Crl.Rev.Pet.No. 1816 of 2002 ( ) -------------------------------- CRA.NO.377/2002 of III ADDL.SESSIONSCOURT, ERNAKULAM CC.NO.791/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I MUVATUPUZHA ------------------------------------------ REVISION PETITIONER(S)/APPELLANT/ACCUSED:- --------------------------------------------------------------------------- YOHANNAN, S/O. OUSEPH, MUTTATHU HOUSE, KARINGAZHA, CHELAD P.O., KOTHAMANGALAM. BY ADV. SRI.P.V.ELIAS RESPONDENT(S)/COMPLAINANT & STATE:- ----------------------------------------------------------------- 1. BENNY, S/O. KURIAKOSE, PUTHAYATH HOUSE, THANKALAM, KOTHAMANGALAM.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S. SIRI JAGAN, J.
- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.1816 of 2002 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December, 2012 ORDER
The petitioner is the accused in Calendar Case No.791/1998 before the Judicial First Class Magistrate's Court-I, Muvattupuzha. He was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act. The complaint was filed by the 1st respondent herein. The prosecution case was that towards the discharge of a debt of Rs.10,000/- due from the petitioner to the complainant, the petitioner issued a cheque drawn on Canara Bank, Kothamangalam branch in the account of the petitioner, which was dishonoured on presentation, on the ground of insufficiency of funds. Although the complainant issued a statutory notice, the petitioner did not pay the amount as demanded. Hence, the petitioner committed the offence alleged. The complainant examined himself as PW1 and examined the Bank Manager as PW2. He got Exhibits P1 to P8 marked in evidence. The respondent examined Crl. Rev. Petition No.1816 of 2002 -2- himself as DW1 and marked Exts.D1 & D2.
2. After considering the evidence adduced, the Magistrate convicted the petitioner and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.5,000/- with a default sentence of simple imprisonment for 15 days. Out of the fine amount, Rs.4,000/- was directed to paid to PW1 as compensation. The petitioner challenged the judgment of the Magistrate in Crl. Appeal No.377/2002 before the III Additional Sessions Judge, Ernakulam, who dismissed the appeal confirming the conviction and sentence. The petitioner is challenging the judgments of the courts below.
3. The contention of the petitioner is that the petitioner has succeeded in rebutting the presumption under Section 139 of the Negotiable Instruments Act by denying the allegation that he issued the cheque to PW1. As such, the lower court could not have convicted the petitioner, is the contention raised.
4. I have considered the rival contentions in detail. Crl. Rev. Petition No.1816 of 2002 -3- 5. On going through the evidence of PW1 and DW2, I am inclined to agree with the lower courts. PW1 has proved that the cheque was issued by the petitioner. Despite his protestation as DW1, I am inclined to believe PW1. Therefore, the conviction is confirmed. But I am inclined to interfere with the punishment imposed by the courts below. Accordingly, the sentence of imprisonment imposed by the courts below is reduced to one till rising of the court. The fine amount is enhanced to Rs.10,000/- (Rupees ten thousand only), which shall be paid to the complainant on realisation, with a default sentence of simple imprisonment for one month. The petitioner shall appear before the Magistrate for undergoing the sentence, after paying the fine amount on 21.01.2013. Needless to say, amounts already deposited by the petitioner shall be given due credit for. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/