IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 Crl.Rev.Pet.No. 394 of 2002() ----------------------------- CRA.400/1999 of V ADDL.SESSIONS COURT, ERNAKULAM CC.352/1998 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT ------------------------------ M.A.AHMAD KALEEMULLAH, WEAVES & WAVES 40/489, M.G.ROAD, COCHIN-11. BY ADV. SRI.C.SANKUNNY RESPONDENT(S): RESPONDENTS IN APPEAL ------------------------------------ 1. M/S.MAYFAIR KNITTING INDUSTRIES LTD., ARCHITECT'S CHAMBER, 39/3590, OFF. M.G.ROAD, RAVIPURAM, COCHIN-16. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU SRI.VAKKON N.VIJAYAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.394 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.352/1998 of Judicial First Class Magistrate Court, Kochi and appellant in Crl.Appeal No.400/1999 of Vth Additional Sessions Court, Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs. 7,000/- which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The revision first respondent/complainant is M/s.Mayfair Knitting Industries Ltd. Kochi, represented by its power of attorney holder PW1. Revision petitioner/accused is a partner in M/s. Weaves and Waves, Kochi. 3. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was Crl.R.P.No.394/02 Page numbers that accused purchased ready made garments from the complainant company for Rs. 6197.70, that to discharge that liability, the accused issued the cheque Ext.P2 dated October 31, 1996 which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P5 dated November 3, 1996, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 4. On receipt of the complaint, the learned Magistrate recorded the sworn statement of PW1, the power of attorney holder of the complainant company and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PWs 1 and 2 were examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the liability. No defence evidence was adduced. 5. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 Crl.R.P.No.394/02 Page numbers of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 6. Heard the counsel for the revision petitioner and revision first respondent. 7. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 8. PWs 1 and 2 were examined and Exts.P1 to P9 were marked on the side of the complainant. PW1, the power of attorney holder of the complainant company testified in terms of the complaint before the trial court. I have gone through his evidence. Nothing was brought out during his cross examination to disbelieve his evidence. Crl.R.P.No.394/02 Page numbers Further his evidence is supported by Exts.P1 to P9 and that of PW2, the Bank Manager. 9. The specific case of the revision petitioner when questioned under Section 313 Cr.P.C. by the trial court was that he issued the cheque Ext.P2 as a partner of M/s.Weaves and Waves and that therefore he is not liable under Section 138 of Negotiable Instruments Act and only a civil suit will lie against him. Both the courts below have rejected the above contention. On going through the evidence, I find no reason to come to a different conclusion. Therefore accepting the evidence of the complainant, I hold that the trial court as well as the lower appellate court is perfectly justified in holding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore his conviction under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 10. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs. 7,000/- to the complainant which is confirmed in appeal. The Crl.R.P.No.394/02 Page numbers transaction is of the year 1996. Therefore, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs. 8,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and ordered to pay a compensation of Rs. 8,000/- to the complainant as provided under Section 357(3) Cr.P.C, in default to undergo simple imprisonment for one month. The revision petitioner shall surrender before the trial court on or before January 30, 2010 to receive the sentence. One month's time is granted for payment of compensation. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.394/02 Page numbers Crl.R.P.No.394/02 Page numbers Crl.R.P.No.394/02 Page numbers P.Q.BARKATH ALI JUDGE sv. 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