IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1528 of 2006() ------------------------------ CRA.217/2005 of ADDL. DISTRICT SESSIONS JUDGMENT (ADHOC), FAST TRACK COURT - III, PATHANAMTHITTA CC.1317/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- SANTHAMMA B., VELLAMAVUMKAL HOUSE, KOLABHAGOM P.O., THADIYOOR, THIRUVALLA. BY ADV. SRI.JOSEPH GEORGE RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------------------------- 1. M/S. SREE GOKULAM CHITS & FINANCE CO. LTD., NO.60, ARCOT ROAD, CHENNAI HAVING ITS BRANCH OFFICE AT CHENGANNUR REP. BY ITS POWER OF ATTORNEY HOLDER V.J.JOHN, VETTUMANNIL HOUSE, VAYYATTUPUZHA P.O., CHITTAR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR THOMAS JOHN AMBOOKER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1528 of 2006() ORDER ON CRL.M.APPL. NO. 4275 OF 2006 IN CRL.R.P.NO.1528 OF 2006 DISMISSED SD/- M.N.KRISHNAN, JUDGE 25.11.2008. M.N. KRISHNAN, J ----------------------- CRL.R.P.No. 1528 OF 2006 --------------------------------- Dated this the 25th day of November, 2008 ORDER This revision is preferred against the judgment in Crl. Appeal No. 217/2005 of the Additional District & Sessions Judge (Adhoc) Fast Track Court III, Pathanamthitta. It was an appeal preferred against the conviction and sentence passed in C.C. 1317/04 of the Judicial First Class Magistrate -I, Pathanamthitta. The trial court convicted the accused to undergo Simple Imprisonment for six months and pay compensation of Rs. 61,664/- under Section 357(3) of the Criminal Procedure Code. In appeal the learned Sessions Judge modified the sentence by reducing the imprisonment to one day that is till the rising of the court and retained the compensation with default sentence. It is against that decision the revision petitioner has come up in revision. 2. Heard the learned counsel. It is the case of the complainant that the revision petitioner had joined a Kuri conducted by the complainant and final settlement of Kuri in auction, issued a cheque for Rs. 61,664/-. When the cheque was presented for encashment it was returned with the endorsement, 'insufficiency of funds'. A notice was issued and the amount was not paid. Then Crl. R.P. No. 1528/2006 -2- the prosecution was initiated under Section 138 of the Negotiable Instruments Act. The contention of the revision petitioner appears to be that she had bid the Chitty in auction and at the time of receiving the amount she had issued a blank signed cheque to the complainant as security. Both the courts below accepted the evidence of PW1 and came to the conclusion that the revision petitioner had executed Ext. P2 cheque towards the discharge of liability which when presented for encashment returned with an endorsement of 'insufficiency of funds'. The learned counsel for the revision petitioner would contend that the courts below had not properly appreciated Ext. D1 which is a pass book retained by the revision petitioner regarding the payment. A perusal of para 6 of the trial court judgment would show that the Chitty was terminated on 26.2.2004 and as per the conditions of the Chitty, interest has to be collected after the termination. It is also deposed by PW1 that the cheque was issued by the accused after the termination of Chitty and on satisfaction of the balance amount due. If the complainant's case is to be looked into, Ext. P2 cheque had been issued on 31.7.2004 whereas the Chitty has terminated on 26.2.2004. So the amount has been crystalysed on the date of issuance of the cheque. The learned counsel invited my attention to Crl. R.P. No. 1528/2006 -3- the Division Bench decision of this Court reported in Joseph Sartho Vs. G. Gopinathan and another [2008 (4) KHC 463 (DB)] . The learned Judge of this court held that when a cheque is issued for an amount and subsequently there has been payment of the amount towards the discharge of that liability, then without deducting that amount or showing it on the reverse of the cheque, one is not entitled to present the cheque for encashment for the entire cheque amount. So far as this case is concerned, there is no such contention for the reason that the case of the revision petitioner is that he had issued a blank cheque towards security and he has not executed a cheque towards discharge of the liability. Further Ext. D1 pass book even according to the evidence of PW1 cannot be related to any period subsequent to 26.2.2004, for the reason that the Chitty had terminated on 26.2.2004. So there cannot be any endorsement of payment in a Kury variola book subsequent to termination of the Kury. Therefore the entries in Ext. D1 pass book will not prove the case of the revision petitioner. The factum of joining a Kury is admitted. Factum of bidding a Kury is also admitted and the receipt of the bid amount is also admitted. So admittedly the amount was due to the Kury company from the revision petitioner. It is the case of PW1 that in ultimate settlement Crl. R.P. No. 1528/2006 -4- of the account, the revision petitioner issued a cheque towards the discharge of the liability. Therefore I find that the courts below had not erred in arriving that Ext. P2 cheque is issued by the revision petitioner towards the discharge of the liability. The learned counsel then would contend that PW1 is only a manager and therefore he is not a power of attorney holder and therefore he is not competent to speak. It is a settled proposition of law that if a power of attorney holder is not personally aware of the transactions he may not be a competent witness. It has to be understood, the complainant is a Company running Chitty and Finance transactions. The managers appointed to different branches and managing the transactions relating to that area and the transactions will be aware of the same. If in each case proprietor has to come, it may not be possible and he also may not be aware of each and every transactions. The Power of Attorney authorised the manger to institute the complaint and as the manager he is expected to know the transactions at least through books kept in the ordinary course of business. Honourable Supreme Court in the decision reported in M/s. M.M.T.C. Ltd. v. M/s. Medchl Chemicals & Pharma (P) Ltd. [AIR 2002 SC 182] has held that when the cheque is in the name of the company, the company can prosecute the case through Crl. R.P. No. 1528/2006 -5- the manager. PW1 is admittedly the manager. He is a person competent to speak on behalf of the complainant and therefore I cannot accept that argument also. 3. Lastly the learned counsel for the revision petitioner strongly contends before me that the appellate court has exceeded its limit and it has enhanced the sentence and therefore it requires interference. The trial court convicted the accused to undergo Simple Imprisonment for six months and pay a compensation of Rs. 61,664/- under Section 357(3) of Crl. P.C. It did not impose any default sentence. But in appeal the substantial portion of the sentence namely the Simple Imprisonment has been altered and modified to one day that is till the rising of the court and in the process of that modification the appellate court held that to pay the compensation under Section 357(3) and in default to undergo Simple Imprisonment for a period of five months. When the appellate court alters the sentence and imposes a default sentence for non payment, it cannot be held as an enhancement of sentence which is prohibited. 4. From this discussion I found there is no perversity, illegality, irregularity or mis-appreciation of evidence which call for interference of the judgment rendered by the court below. Crl. R.P. No. 1528/2006 -6- Therefore the Criminal Revision Petition is disposed of as follows: 1. Finding of guilt under Section 138 is sustained. 2. The revision petitioner is sentenced to undergo Simple Imprisonment for one day that is till the rising of the court and pay compensation of Rs. 61,664/- to the complainant and in default to undergo Simple Imprisonment for three months. 3. He shall appear before the trial court to receive the sentence and pay the compensation on 19.2.2009, failing which the trial court shall execute the sentence. If any amount is paid towards compensation let it be adjusted and disbursed to the complainant on proper application. M.N. KRISHNAN,JUDGE vkm