IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 Crl.Rev.Pet.No. 362 of 2001(A) ------------------------------------------ CRL.A.NO.341/1998 OF I ADDL.SESSIONS COURT, ERNAKULAM, CC.NO.612/1997 OF JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- RAZEEM USMAN, AL-RAZ EXPORTS, DOOR NO. 7/382, D.S. ROAD, COCHIN – 682 002. BY ADVS. MR.V.M.KURIAN, MR.A.V.THOMAS, MR.MATHEW B. KURIAN, MR.K.T.THOMAS. RESPONDENTS/RESPONDENTS/COMPLAINANT: ---------------------------------------------------------------------- 1. A.P.L. AGENCIES (P) LTD., WILLINGTON ISLAND, COCHIN-3, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, C.M. ABDUL KAREEM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. R1 BY ADVS. MR.N.SUKUMARAN, MR.S.SHYAM, MR.V.K.BALACHANDRAN, MR.BOBBYMATHEW KOOTHATTUKULAM, R2 BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED. THIS CRIMINAL REVISION PETITION H AVING BEEN FINALLY HEARD ON 19/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No.362 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 19th day of October, 2009 O R D E R Revision petitioner is the accused in C.C.No.612 of 1997 of the Judicial Magistrate of the First Class-I, Ernakulam and the appellant in Crl.A. No.341 of 1998 of the First Addl. Sessions Court, Ernakulam. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to under go simple imprisonment for three months and to pay fine of Rs.1,85,000/- by the trial court. On appeal, the lower appellate court confirmed his conviction and substantive sentence, but converted the fine into compensation under section 357(3) Cr.P.C. The accused has now come up in revision challenging his conviction and sentence. 2. The first respondent/complainant is a Private Limited Company engaged in carriage of goods by sea. The revision petitioner/accused is engaged in exporting. The case of the first respondent/complainant, as testified by the power of attorney holder PW1 and as stated in the complaint, was that the accused entrusted a consignment of goods to the complainant company, that an amount of Rs.1,83,265/- was due to the complainant from him, that in discharge of that liability he issued a cheque for Rs.183,265/-, dated November 6, 1996, drawn on Bank of India, CRL.RP 362/01 2 Ernakulam branch, which when presented for collection was dishonored for want of insufficiency of funds in the account of the accused and that in spite of notice Ext.P4, the accused did not repay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the statement of the power of attorney holder of the complainant company and took cognizance of the case. When accused appeared before the trial court, he pleaded not guilty to charge under section 138 of the Negotiable Instruments Act. 4. PW1 was examined and Exts.P1 to P5 were marked on the side of the complainant company. Extract of the account of the accused in the bank was marked as Ext.C1. When questioned under section 313 Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 5. The trial court, on an appreciation of the evidence, found the revision petitioner guilty to offence punishable under section 138 of the Negotiable Instruments Act, convicted him there under and sentenced him as aforesaid. On appeal, the learned Sessions Judge confirmed the conviction and substantive sentence imposed, but converted the fine amount as compensation as aforesaid. 6. The following points arise for consideration:- CRL.RP 362/01 3 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court, which is confirmed in appeal, can be sustained? 2) Whether the sentence imposed on the revision petitioner is excessive or unduly harsh? 7. PW1 the power of attorney holder was examined and Exts.P1 to P5 were marked on the side of the complainant. PW1 testified on the terms of the complaint. I have gone through the evidence of PW1. Nothing was brought out in his cross-examination to discredit his evidence. His evidence is supported by Exts.P1 to P5. Therefore, the trial court as well as the appellate court is justified in believing his evidence and coming to the conclusion that Ext.P1 cheque was issued by the accused to discharge his liability towards the complainant company, which when presented for collection was dishonored for want of insufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P4, the accused did not repay the amount, which is offence punishable under section 138 of the Negotiable Instruments Act. 8. The learned counsel for the revision petitioner argued that the accused issued cheque Ext.P1 as the Chief Executive of A1-Raz Exports, that he is not personally liable to pay that amount and that therefore no charge under section 138 of the Negotiable Instruments Act will lie against CRL.RP 362/01 4 him. It is significant to note that no such contention was raised by the revision petitioner before the trial court and such a contention was taken for the first time before the lower appellate Court. That apart the revision petitioner did not sent any reply to notice Ext.P4. Therefore, I find no merit in the above contention of the revision petitioner. 9.The counsel for the revision petitioner submitted that the revision petitioner filed two petitions before the trial court to re-open the evidence and to adduce evidence, which were dismissed by the trial court, which resulted in substantial miscarriage of justice. I find no substance in the above contention. On going through the records, it is seen that when the revision petitioner was questioned under section 313 Cr.P.C., he submitted that he has no defence evidence. Though the case was posted on several dates, only when the case was posted for judgment, the revision petitioner filed such petitions, which were rightly dismissed by the trial court as belated. For all these reasons, I am inclined to confirm the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act rendered by the trial court, which is confirmed in appeal by the lower appellate court. 10. As regards the sentence, the trial court sentenced the revision petitioner to undergo simple imprisonment for three months and to pay fine CRL.RP 362/01 5 of Rs.1,85,000/-, in default to undergo simple imprisonment for three months under section 138 of the Negotiable Instruments Act. On appeal, the lower appellate court confirmed his conviction and the substantive sentence of the revision petitioner, but converted the fine amount into compensation under section 357(3) of the Cr.P.C. Taking into consideration the fact that the transaction is of the year 1996, I feel that sentence of imprisonment till the rising of court and to pay fine of Rs.1,85,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. 11. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act is confirmed and he is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.1,85,000/-, in default to undergo simple imprisonment for three months. If the fine amount is realized, it shall be paid to the first respondent, as compensation as provided under section 357(1) Cr.P.C. The revision petitioner shall surrender before the trial court on or before 15-11-2009 to suffer the sentence. One month’s time is granted for payment of fine. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn