IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 Crl.Rev.Pet.No. 3793 of 2009() ------------------------------ CRA.281/2008 of SESSIONS COURT, KASARAGOD CC.540/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER: --------------------- CHACKO JOSEPH, AGED 61 YEARS PRESIDENT, KERALA TOURISM DEVELOPMENT SOCIETY NEAR PETROL BUNK, KOTTACHERY, P.O.KANHANGAD HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, KOCHI-31. 2. V.UTHAMAN, AGED 59 YEARS, S/O.LATE V.KUNHAMBU NAIR, RESIDING AT ANURAG, KIZHAKKUMKARA, AJANUR VILLAGE, P.O.AJANUR. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------- Crl.R.P.No.3793 of 2009 -------------------------------- Dated this the 22nd day of December, 2009 ORDER The revision petitioner was found guilty by the Judicial Magistrate of the First Class-I, Hosdurg in C.C.No.540 of 2007 for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for six months and to pay Rs.1,24,000/- as compensation to the second respondent who prosecuted the revision petitioner before the trial court. Though the revision petitioner preferred Criminal Appeal No.281 of 2008, he was not successful in assailing the conviction. The learned Sessions Judge, Kazsaragod, while confirming the conviction, reduced the sentence to simple imprisonment for ten days. The order to pay compensation was sustained. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that Kerala Tourism Development Society of which the revision petitioner was the President owed a sum of Rs.1,24,000/- to the second respondent and in discharge of the said liability, the Crl.R.P.No.3793 of 2009 2 revision petitioner, who was the authorised signatory, delivered Ext.P1 cheque dated 11/1/2007 drawn on District Co-operative Bank Ltd, Kanjagad branch and that when presented for collection through Kazaragod District Co-operative Bank, Kanjagad Branch, Ext.P1 was dishonoured for insufficiency of funds as evidenced by Ext.P2 memo dated 19/1/2007. Demanding discharge of the liability, a lawyer notice copy of which was marked as Ext.P3 dated 31/1/2007 was issued. Despite the acknowledgment of the notice as evidenced by Ext.P4, the liability was not discharged. 3. When questioned under Section 313 of the Code of Criminal Procedure, the revision petitioner took up a defence of total denial. During cross-examination of PW.1, the defence was that the amount was due from the society of which the revision petitioner was the President and that the revision petitioner is not personally liable for the amount covered by Ext.P1. The courts below found that the revision petitioner as signatory having issued the cheque cannot escape the prosecution, for the reasons that the society was not prosecuted. A reading of Section 141 of the Negotiable Instruments Act would show that if the person committing an offence under Section 138 of the Negotiable Instruments Act is a company, which would include any body Crl.R.P.No.3793 of 2009 3 corporate, a firm or other society, every person who at the time of offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offences and shall be liable to be proceeded against and punished accordingly. It is not disputed that revision petitioner was in charge and responsible to the company for the conduct of the business and in such capacity Ext.P1 was signed and delivered. In the light of Section 141 of the Negotiable Instruments Act, the revision petitioner cannot escape the prosecution with an allegation that the society was not prosecuted. In this view of the matter, I find no error, illegality or impropriety committed by the courts below. There is no reason to reject the evidence of PW.1 which remains uncontroverted. It is also pertinent to note that the revision petitioner did not even care to respond to the notice demanding discharge of the liability. He has got no good excuse for not discharging the liability. So offence under Section 138 of the Negotiable Instruments Act is made out as against the revision petitioner, despite the fact that the society whom the revision petitioner represented was not prosecuted by the second respondent. The conviction is unassailable. Crl.R.P.No.3793 of 2009 4 4. Having due regard to the fact that the revision petitioner issued the cheque for and on behalf of the society and having he demitted the office, he is entitled to be dealt leniently in sentencing and that a sentence of imprisonment till rising of the court with compensation as ordered by the trial court and confirmed in appeal would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court. The order to pay compensation is sustained with default sentence of simple imprisonment for three months. The revision petitioner is granted six months time to remit the compensation. Till then, the bail bond executed by him shall remain in force. The amount if any, deposited by the revision petitioner shall be given credit to. P.S.GOPINATHAN, JUDGE skj