IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 4494 of 2007(B) ------------------------------ CRA.277/2007 of SESSIONS JUDGE (ADHOC-II), ERNAKULAM CC.2123/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI-5 .................... REVN. PETITIONER/APPELLANT BEFORE S.C./ACCUSED IN C.C.2123/03 : ----------------------------------------------------------------------------------------- C.MOHAMMEDKUTTY, PROPRIETOR, M/S. ALFA CASSETTES, CHEMMAD P.O., THIRURANGADI, MALAPPURAM - 676 306. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY RESPONDENT/RESPONDENT IN CRA & COMPLAINANT IN CC 2123/2003 : ------------------------------------------------------------------------------------------ 1. N.VALSAN, AGED 39, S/O. C.K.NARAYANAN NAMBIAR, CONEE RECORDING CO., 39/1646, KALATHIPARAMBIL CROSS ROAD, VALANJAMBALAM, CHITTOOR ROAD, COCHIN - 16. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 4494 OF 2007 ............................................ DATED THIS THE 22nd DAY OF SEPTEMBER, 2008 ORDER Petitioner is the accused and first respondent the complainant. First respondent lodged the complaint alleging that he is the Proprietor of Conex Recording Company engaged in the business of duplication/copying of audio cassettes and petitioner is Proprietor of the concern by name, `Alpha Cassettes' and he used to engage first respondent for copying audio cassettes for the purpose of releasing the same in market and in the course of business, Rs.3,67,509.80 was due and petitioner made part payment and the balance was found as Rs.3,12,509.80 and towards its payment, petitioner issued Ext.P1 cheque dated 20.11.2007 for Rs.3,12,509.80/- drawn in his account maintained in State Bank of Travancore and when first respondent presented the cheque, through his account in M.G.Road Branch of Syndicate Bank, it was dishonoured for the reason that payment was stopped by the drawer and it was also understood that petitioner had no sufficient funds in his account at that time and Ext.P3 notice was issued demanding the payment covered under Ext.P1 cheque, both in his address at the CRRP 4494/2007 2 shop as well as residence and notice sent at the shop was received under Ext.P4 and the other was returned under Ext.P5 and instead of paying the amount, petitioner sent Ext.P6 reply and thereby committed the offence. 2. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P9 were marked on his side. The application for loan filed by first respondent to the Bank was got summoned by petitioner and was marked as Ext.X1. No oral evidence was adduced by him. 3. Learned Magistrate, on the evidence, found that Ext.P1 cheque was issued by petitioner towards the balance amount due to first respondent, a Proprietory concern, on account of the copying of Audio Cassette charges due to first respondent from the petitioner and Ext.P1 cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities and petitioner failed to pay the amount covered by the dishonoured cheque in spite of notice served on him demanding the amount and petitioner thereby committed the offences under Section 138 of N.I.Act. He was sentenced to simple imprisonment for three months and compensation of Rs.3,13,000/- and in default, simple imprisonment for three CRRP 4494/2007 3 months under Section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Cr.A.277 of 2007. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to simple imprisonment for one month and a compensation of Rs.3,75,000/- and in default, simple imprisonment for three months. Revision Petition is filed challenging the concurrent conviction and modified sentence. 4. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that Ext.P1 cheque was not issued in the name of first respondent and instead it was in favour of Conex Recording Company and first respondent is not the payee or holder in due course and therefore the complaint by first respondent is not maintainable. Learned counsel vehemently argued that first respondent is not entitled to file a complaint on behalf of a company, unless he is authorised by the company and for that sole reason, conviction and sentence is to be set aside. Learned counsel also argued that petitioner had transactions with Conex Recording Company, which was subsequently changed to Aroma Digitals and the cheque issued CRRP 4494/2007 4 earlier was utilised by first respondent to present it before the bank and claim the amount and petitioner is not liable to pay the amount covered under Ext.P1 cheque to first respondent and Ext.P1 was not issued towards the discharge of an existing liability and therefore no offence under Section 138 of N.I.Act is established. Learned counsel also argued that there is no evidence to prove that PW1, the first respondent is the Proprietor of the concern Conex Recording Company and on the evidence, it should have been found that no offence under Section 138 of N.I.Act was committed. 5. On hearing the learned counsel and going through the judgments, I do not find any illegality or irregularity in the appreciation of evidence by the courts below. True, under Ext.P1, payee is Conex Recording Company. It is the specific case of first respondent that Conex Recording Company is his Proprietory concern and he is the sole Proprietor. Though it was vehemently argued by learned counsel that it is a company and not proprietory concern, there is no evidence to prove that Conex Recording Company is either a company registered under the Companies Act or a registered partnership firm or even an unregistered partnership firm. On the other hand, Ext.X1, the CRRP 4494/2007 5 application filed for loan before Syndicate Bank by Conex Recording Company, which was actually summoned by petitioner and produced before the court by the Bank officials establish that Conex Recording Company is a proprietory concern and first respondent, the complainant is its sole Proprietor. Therefore, though the payee under Ext.P1 is the proprietory concern, proprietory concern has no independent legal status to stand and a complaint can only be filed through its proprietor. Therefore the complaint is perfectly maintainable. 6. Then the only question is whether Ext.P1 was issued towards discharge of an existing liability. Learned counsel argued that evidence of PW1 does not establish execution of the cheque. The argument is that PW1 did not depose that Ext.P1 cheque was written in his presence and he had only deposed that petitioner issued the cheque. Evidence of PW1 establish that Ext.P7 statement was sent to first respondent to confirm the balance amount payable by petitioner shown therein and confirming the same, Ext.P7 signed by petitioner and returned and towards the balance amount due thereunder, Ext.P1 cheque was issued by petitioner. PW1 deposed that petitioner came to his room and in his presence, signed the cheque and handed it CRRP 4494/2007 6 over to the petitioner. Though PW1 stated that he did not see petitioner writing the cheque, evidence, establish that Ext.P1 cheque was signed in the presence of PW1 and was given to petitioner. Hence execution of Ext.P2 was proved. Evidence of PW1 with Ext.P7 establish that Ext.P1 cheque was issued towards the discharge of the existing liability. Learned Magistrate and learned Sessions Judge rightly appreciated the evidence and found that Ext.P1 cheque was issued towards discharge of the existing liability. I do not find reason to interfere with the appreciation of evidence. In any event, appreciation of evidence cannot be said to be perverse, warranting reappreciation at the revision stage. 7. The fact that Ext.P1 cheque was dishonoured as payment was stopped by the drawer is not disputed. Ext.P3 notice was issued stating that cheque was dishonoured as payment was stopped by the drawer and petitioner was called upon to pay that amount. In Ext.P6 reply, petitioner did not dispute that fact. Evidence of PW1 establish that in the account of petitioner, there was no sufficient amount to honour Ext.P1 cheque at that time. Evidence establish that first respondent had complied with all the statutory formalities provided under CRRP 4494/2007 7 Section 138 and 142 of N.I.Act. The conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal and correct. 8. So long as the sentence is not to be varied or modified against the interest of the complainant, notice need not be sent to the first respondent. Though learned Magistrate sentenced petitioner to simple imprisonment for three months, in addition to compensation, learned Sessions Judge reduced the substantive sentence to simple imprisonment for one month and enhanced the compensation to Rs.3,75,000/-. Interest of justice will be met if the sentence is modified to imprisonment till rising of court and a fine of Rs.3,76,000/- and in default simple imprisonment for two months. On realisation of the fine amount Rs.3,75,000/- is to be paid to first respondent as compensation under Section 357(1) of Code of Criminal Procedure. 9. Revision petition is therefore allowed in part. While confirming the conviction for the offence under Section 138 of N.I.Act, sentence is modified to imprisonment till rising of court and a fine of Rs.3,75,000/- to be paid within two months from today. On realisation of the fine amount Rs.3,75,000/- is to be paid to first respondent as compensation under Section 357(1) of CRRP 4494/2007 8 Code of Criminal Procedure. Petitioner is directed to appear before learned Magistrate on 25.11.2008. M.SASIDHARAN NAMBIAR, JUDGE lgk/-