IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.Rev.Pet.No. 2156 of 2008() ------------------------------ CRA.351/2007 of SESSIONS COURT, ERNAKULAM CC.503/2001 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- 1. M/S.LEANS LINES (P) LTD., REP. BY L.A.XAVIER D'CRUZ, ETHALEAN HOUSE, T.C.44/613, VALIATHURA P.O., TRIVANDRUM. 2. L.A.XAVIER D'CRUZ, CHAIRMAN, M/S.LEANS LINES (P) LTD., ETHALEAN HOUSE, T.C.44/613, VALIATHURA P.O., TRIVANDRUM. BY ADV. SRI.P.BABU KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CAPTAIN MANOJ CHACKO, SAKURA (UPSTAIRS) ELAMKULAM, KADAVANTHRA, KOCHI-20. ADV. SRI.P.LEAN JOSE FOR R2 PUBLIC PROSECUTOR SRI.C.M. NAZER FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2156 OF 2008 ------------------------------------------ Dated this the 21st day of October, 2008 O R D E R Petitioners are the accused in C.C. 503 of 2001. First Petitioner is a company and second petitioner is its Managing Director. Case of the 2nd respondent is that towards the amount due to second respondent from the first petitioner company, Ext.P1 cheque for Rs.50,000/- drawn in the account maintained by first petitioner company was issued for the company by the second Petitioner and when the cheque was presented for encashment , it was dishonoured for want of sufficient funds and notice was sent to both the petitioners demanding the amount covered by the dishonoured cheque, which were received by them under Exts.P6 and P6(a) acknowledgement cards. They failed to pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Learned Chief Judicial Magistrate on the evidence of second respondent as PW1 and Exts.P1 to P6 found the petitioners guilty and convicted and sentenced them for the offence under CRRP 2156/08 2 section 138 of N.I. Act. First petitioner was sentenced to a fine of Rs.50,000/- and second petitioner to simple imprisonment for six months and a fine of Rs.75,000/- and in default simple imprisonment for three months. On realisation of the fine from the second petitioner, it was directed to be paid to the second respondent as compensation. Petitioners challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.Appeal 351 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction, but modified the sentence to a fine of Rs.75,000/- and in default simple imprisonment for three months as against the second petitioner. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioners and the second respondent were heard. 3. Learned counsel appearing for petitioners submitted that when the case was pending before the learned Magistrate, petitioners had paid the entire amount covered by the dishonoured cheque. But this fact could not be brought to the notice of the learned Sessions Judge when the appeal was heard and therefore learned Sessions Judge did not get an opportunity CRRP 2156/08 3 to consider this aspect and in the interest of justice considering the fact that entire amount due under the dishonoured cheque was paid, sentence may be modified. Learned counsel appearing for second respondent submitted that when the matter was pending before learned Magistrate, there was an understanding with the counsel appearing for petitioners to settle this case as well as C.C. 504 of 2001. But the amount as agreed between the counsel was not paid and therefore the case was not settled. It is admitted by the learned counsel appearing for second respondent that the entire amount covered by the dishonoured cheque was received by the second respondent when the case was pending before the learned Magistrate. In view of the submission made by the learned counsel, a report was called for from learned Additional Chief Judicial Magistrate. Learned Additional Chief Judicial Magistrate also reported that the amount covered by the dishonoured cheque was paid evidenced by the memos produced before the learned Magistrate. 4. True, an offence under section 138 is committed on the failure of the drawer of the cheque to pay the amount covered by the dishonoured cheque, within the period, after receipt of the notice demanding the amount covered by dishonoured cheque CRRP 2156/08 4 intimating the dishonour within the statutory period. Therefore payment of the amount covered by the dishonoured cheque subsequent to the filing of the complaint, as in this case, will not enable the petitioners to get an order of acquittal. But it is definitely a fact which is to be considered at the time when the sentence is awarded. 5. Section 138 of N.I.Act provides for a sentence of imprisonment for a period of two years and or fine which could be double the amount covered by the dishonoured cheque. Learned Sessions Judge modified the sentence to fine, though learned Magistrate awarded a sentence of imprisonment also. Considering the fact that the petitioners have paid the amount covered by the dishonoured cheque, though subsequent to the filing of the complaint, interest of justice will be met if the sentence is reduced to a fine of Rs.5,000/- each. On default to pay the fine second petitioner to undergo simple imprisonment for ten days. Revision is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-