IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 1539 of 2006(B) ------------------------------ CRA.632/2005 of VI ADDL.SESSIONS COURT, ERNAKULAM ST.4446/2003 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S)/APPELLANTS/ACCUSED ------------------------------------------------------------------- 1. M/S.J.J.FOOD PRODUCTS, CHETTINADU KAVALA, KODANADU. 2. SUSAN SAJU, AGED 48 YEARS, W/O.SAJU, MANAGING PARTNER, M/S.J.J.FOOD PRODUCTS, NADACKAL HOUSE, CHETTINADU, KODANADU. BY ADV. SRI.K.SUNILKUMAR RESPONDENT(S)/RESPONDENTS/COMPLAINANT/STATE ---------------------------------------------------------------------------- 1. K.H.RASHEED, PROPRIETOR, M/S.K..M.HASSAN & SONS, FISH MARKET ROAD, PERUMBAVOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.RAJAGOPAL FOR R1 SRI.THOMAS M.JACOB FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL. R.P.No. 1539/2006 ORDER ON CRL.M.P.NO. 4292/2006 IN CRL. R.P.NO. 1539/2006 DISMISSED. SD/- M.N. KRISHNAN, JUDGE. 15/10/2008 /TRUE COPY/ P.A. TO JUDGE. vkm M.N. KRISHNAN, J -------------------------- CRL.R.P.No. 1539 OF 2006 -------------------------------------------- Dated this the 15th day of October, 2008 O R D E R This Revision is preferred against the judgment of the IV th Additional Sessions Judge, Ernakulam in Crl. Appeal No. 632/05. The said appeal had arisen out of the conviction and sentence passed by the Judicial First Class Magistrate Court, Perumbavoor in S.T. No. 4446/03. It is a complaint filed under Section 138 of the Negotiable Instruments Act. It is the case of the complainant that second accused had purchased broken rice for the purpose of his business and towards the price of the same had issued a cheque for Rs. 1,20,000/- which when presented for encashment returned with an endorsement of insufficiency of funds. Though Statutory notice was issued no payment was made and therefore a complaint is filed under Section 138 of the Negotiable Instrument Act. 2. In Trial Court PW1 was examined and Ext. P1 to P5 were marked. 3. PW1 is the complainant. He had deposed that the second accused as the Managing Partner of the first accused had purchased the broken rice for a sum of Rs. 1,20,000/- and thereafter had Crl. R.P. No. 1539/2006 -2- issued Ext. P1 cheque towards the discharge of the liability which when presented was returned unpaid on account of insufficiency of funds. The statutory notice and the acknowledgment card also had been produced. The evidence of PW1 makes it clear that the second accused is running the business of rice and therefore the acceptability of his evidence need not be doubted. If there is no connection between the complainant and the second accused there was no occasion for the cheque of the first accused coming into the hands of the complainant. Therefore the case of the complainant that the second accused had purchased rice and had issued the cheque towards the price of the same is believable. His evidence also is convincing on the basis of which a decision can be reached. Both the courts below have appreciated the matter only in the correct perceptive and arrived at a decision. Therefore the conviction does not call for any interference. 2. So far as the sentence is concerned, the Trial Court convicted the accused to undergo S.I for three months and pay compensation of Rs. 1,21,000/- under Section 357(3) of Criminal Procedure Code, which on appeal was modified to that of one month and payment of compensation of Rs. 1,21,000/- under Section 357(3). Crl. R.P. No. 1539/2006 -3- 3. After hearing the learned counsel, I feel little more leniency can be shown so far as his sentence is concerned and therefore I modify the sentence by reducing the imprisonment from one month till rising of the court and also impose a fine of Rs. 1,21,000/- instead of compensation under Section 357(3) and on realisation of the fine it has to be paid to the complainant. In default of payment of fine the second accused has to undergo S.I for two months. In the result Criminal R.P is disposed of as follows: 1. The conviction under Section 138 is confirmed. 2. The sentence is modified and the Revision Petitioner is directed to undergo Simple Imprisonment till rising of the court for one day and pay fine of Rs. 1,21,000/- which on payment shall be paid to the complainant. In default of payment of fine the second accused shall undergo Simple Imprisonment for a period of two months. 3. The Revision Petitioner is directed to be present before the Tribunal to receive the sentence on 14.1.2009 and also for payment of fine. In case of failure the Trial Court has to execute the sentence. M.N. KRISHNAN, JUDGE. vkm