IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 Crl.Rev.Pet.No. 604 of 2004(A) ------------------------------ CRA.35/2002 of I ADDL.DISTRICT COURT, ERNAKULAM CC.180/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED ------------------------------------------ GAJANAN KESAV BALIGA, BAD - 581 441, KUMTA TALUK, UTTAR KANADA DISTRICT, KARNATAKA. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. M/S.HIGASH IMARU FEEDS (INDIA) LTD., AMALAGAM HOUSE, BRISTEW ROAD, WILLINGDON ISLAND, COCHIN 682 003. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE FOR R1 SRI.MATHEWS K.UTHUPPACHAN FOR R1 BY PUBLIC PROSECUTOR SRI.P.A. SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No. 604 OF 2004 =========================== Dated this the 6th day of August,2010 ORDER Petitioner is the second accused in C.C.180/1998 on the file of Judicial First Class Magistrate's Court-I, Ernakulam taken cognizance for the offence under section 138 of Negotiable Instruments Act on a complaint filed by the first respondent. First accused is a partnership firm. Second accused is a partner. Third accused is one of the partners. As the third accused was absconding the case against him was split up and refiled as C.C.1453/2001. Accused 1 and 2 were tried by the learned Magistrate as they pleaded not guilty. First respondent the authorised representative of the first respondent was examined as PW1 and Exts.P1 to P16 were marked. On the side of the accused, no oral evidence was adduced and only Ext.D1 was marked. Learned Magistrate on the Crl.R.P.604/2004 2 evidence convicted both the accused. First accused firm was sentenced to a fine of Rs.5000/- and petitioner was sentenced to simple imprisonment for six months and a compensation of Rs.3,00,000/-. Petitioner challenged the conviction and sentence before the Sessions Court, Ernakulam in Crl.A.35/2002. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned counsel appearing for the first respondent were heard. 3. The argument of the learned counsel appearing for the petitioner is that Ext.P1 cheque was issued as a blank cheque and that too as security for supply of fish feeds by the first respondent and hence an offence under section 138 of Negotiable Instruments Act is not attracted. Learned counsel also argued that evidence of PW1 establish that out of Rs.3,50,000/-covered by Ext.P1 cheque, payment of Rs.50,000/- was admitted Crl.R.P.604/2004 3 and in addition a cash deposit of Rs.1,12,207/-, which is liable to be adjusted on termination of the dealership, is also admitted and PW1 also admitted that the dealership was terminated and in such circumstances the cash deposit of Rs.1,12,207/- is payable by the first respondent to the firm and it is liable to be adjusted towards the compensation and to that extent, the sentence is to be modified. Learned counsel also argued that considering the entire facts and circumstances of the case, in the interest of justice, the substantive sentence is to be modified. 4. Learned counsel appearing for the first respondent submitted that both the courts appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction or the sentence. 5. Though learned counsel appearing for the petitioner argued that Ext.P1 cheque was issued as security and that too as a blank cheque, there is no material to support the said defence. When PW1 was examined, apart from suggesting that Ext.P1 Crl.R.P.604/2004 4 cheque was issued as security, there was not even a suggestion that it was issued as a blank cheque. When there is also a payment of Rs.1,12,207/- as security, it cannot be believed that there would be a further security either by a completed cheque or a blank cheque. Therefore on the evidence, I cannot agree with the argument of the learned counsel that Ext.P1 cheque was issued either as a security or as a blank cheque. 6. Learned Magistrate and the learned Sessions Judge appreciated the evidence in the proper perspective and found that Rs.3,50,000/- was due from the first accused firm to the first respondent towards purchase of fish feeds and Ext.P1 cheque was issued towards its payment. Evidence also establish that cheque was dishonoured for want of sufficient funds and first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. In such circumstances conviction of the petitioner the second accused partner along with the first accused firm is perfectly legal and Crl.R.P.604/2004 5 warrants no interference. 7.Then the only question is regarding the sentence. Though the cheque is for Rs.3,50,000/- learned Magistrate awarded a compensation of Rs.3,00,000/- taking into account the admission of payment of Rs.50,000/- subsequent to the sending of Ext.P5 notice, as proved by Ext.P9(a). As rightly pointed out by the learned counsel appearing for the petitioner, evidence of PW1 further establishes that from the first accused, a cash deposit of Rs.1,12,207/- was received by the first respondent agreeing to repay the same when the dealership is terminated. Evidence of PW1 is that as the amount payable by the firm was not paid, it cannot be adjusted. In re examination PW1 clarified that on settlement of the accounts by paying the amount due, the security deposit could be returned. In the light of this evidence, while granting compensation learned Magistrate should have taken into consideration of Rs.1,12,207/- available with the first respondent and due to the petitioner which should be adjusted towards the Crl.R.P.604/2004 6 amount due. In such circumstances, interest of justice will be met if the sentence against the petitioner is modified providing for a substantive sentence of imprisonment till rising of court and a compensation, less the security deposit of Rs.1,12,207/- and Rs.50,000/- taking into consideration that the amount was payable in 1997 itself. Revision is allowed in part. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.2,00,000/- and in default simple imprisonment for two months. Petitioner is directed to appear before the Judicial First Class Magistrate's Court, Ernakulam on 17.8.2010. Learned Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006