IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 CRL.REV.PET.NO. 2583 OF 2009() ----------------------------------------- CRA.149/2009 OF ADDL. SESSIONS COURT, ALAPPUZHA CC.211/2008 OF CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S) - APPELLATE - ACCUSED: -------------------------------------------------------------- BABU ANTONY , 53 YEARS,S/O.ANTONY NADAKKAPARAMBIL HOUSE, PATHIRAPPALLY PO, ALAPPUZHA. BY ADV. SRI.MANJU ANTONEY SRI.K.C.SUDHEER RESPONDENT(S) - RESPONDENT - COMPLAINANT: -------------------------------------------------------------- 1. M/S. GURU JEWELLARS MULLACKAL, ALAPPUZHA, REPRESENTED BY ITS PROPRIETOR GURRUDAYAL M.P, S/O.PALANIAPPAN, GURU NIVAS, NEAR AMMANKOVIL STREET MULLACKAL, ALLAPPUZHA. 2. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2583 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional sessions Judge-I, Alappuzha in Crl. Appeal No.149 of 2009 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner issued Ext.P1, cheque dated 9.1.2008 for the discharge of a liability to the tune of Rs.95,000/-. That cheque was dishonoured for insufficiency of funds which is proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 and P5. Power of Attorney Holder of respondent No.1 gave evidence as P.W1. Exhibit P7 is the Power of Attorney. According to the petitioner, complaint itself is not maintainable since the complaint is preferred by a proprietory concern which is not a legal entity. It is further contended that no amount as claimed by respondent No.1 is due. Courts below negatived the contentions and found petitioner guilty. 2. In the complaint, complainant is described as 'M/s. Guru Jewellers', represented by its proprietor Gurudayal M.P. Contention advanced is that proprietory concern is not a legal entity and could CRL. R.P. No.2583 of 2009 -: 2 :- not have sustained a complaint. No doubt, respondent No.1 is a proprietory concern but it is only a name style for the proprietor himself. Learned magistrate observed that proper description of the complainant would have been as Gurudayal M.P., Proprietor, M/s.Guru Jewellers. I am in agreement with that view. Complaint can be treated as filed by the proprietor though name style in which he is doing business is also mentioned in the complaint. That shall not affect the maintainability of the complaint. Nor is there any dispute regarding identity of the person concerned. 3. P.W1 has given evidence that petitioner purchased gold ornaments from respondent No.1 for Rs.95,096/-, paid Rs.96/- and issued cheque for the balance amount. Petitioner has no satisfactory explanation as to how else the cheque happened to be in the custody of respondent No.1. It is not disputed that Ext.P1 is signed and drawn on the account maintained by petitioner. Courts below found that there is no reason to disbelieve the evidence of P.W.1. It is in the above circumstances that petitioner was found guilty. Having gone through the judgments under challenge and on hearing learned counsel I find no reason to interfere with the finding entered by the courts below, 4. Though learned magistrate imposed a sentence of imprisonment for three months, fine of Rs.95,000/- and default CRL. R.P. No.2583 of 2009 -: 3 :- sentence of imprisonment for three months, Appellate Court set aside the substantive sentence but confirmed the sentence of fine and default sentence. There is also a direction that fine if realised will be given to respondent No.1 as compensation. Having regard to the nature of offence and amount involved I find no reason to interfere with the sentence as modified and default sentence as confirmed by the appellate court, at the instance of petitioner. 5. Learned counsel requested five months' time to deposit the fine. Counsel submitted that petitioner is not able to raise the amount immediately. Considering the circumstances stated by counsel I am inclined to grant time till 11.01.2010 to deposit fine. Resultantly this revision petition fails and is dismissed. Petitioner is granted time till 11.01.2010 to deposit fine in the trial court as ordered by the appellate court. In case of failure petitioner shall appear in the trail court on 12.01.2010 to receive the default sentence. Until 12.01.2010 execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv