IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 Crl.Rev.Pet.No. 1494 of 2003(C) --------------------------------------------------- CRA.367/2002 of III ADDL.SESSIONS COURT, ERNAKULAM CC.126/1994 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: C. THOMAS, PROPRIETOR, MAYA MARKETING, RAVIPURAM ROAD, VALANJAMBALAM, COCHIN-682 016. BY ADV. SRI.SURESH JOSE RESPONDENTS/RESPONDENTS/COMPLAINANT: 1. SINGER INDIA LIMITED, 3, DEVIKA TOWER, 6, NEHRU PALACE, NEW DELHI-110 019, REPRESENTED BY ITS LEGAL AND AUDIT OFFICER SHRI.R. GUNASEKARAN. 2. STATE OF KERALA, REPRESENTED BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.S.RAMESH BABU FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.APPL.NO.6531/2003 IN CRRP 1494/2003 DISMISSED 28.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1494 of 2003 -------------------------- ORDER Petitioner was convicted and sentenced to imprisonment till rising of court and a fine of Rupees Two lakhs and in default, simple imprisonment for three months with a direction to pay Rs.1,80,000/-, out of the fine realised, to the first respondent/complainant as compensation for the offence under Section 138 of Negotiable Instruments Act. Though petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A. No.367/2002, learned III Additional Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Argument of the learned counsel appearing for the petitioner is that courts below were not CRRP 1494/03 2 justified in convicting the petitioner when the very handwriting in Exhibit P1 dishonoured cheque was disputed by the petitioner, without any evidence to prove that it is his handwriting. Argument is that, as security, petitioner had furnished two blank cheques to the first respondent and making use of one of that blank cheques, by filling it up, Exhibit P1 cheque was presented and as PW1, who was examined on behalf of the first respondent, deposed that Exhibit P1 cheque was written by the petitioner in his presence, at the instance of the petitioner, the cheque was sent to Forensic Science Laboratory for comparison, but, it was returned for sending it along with some more handwritings of the relevant period. But, learned Magistrate did not send it again and without the report of an expert, decided the case. It is argued that if the handwriting in Exhibit P1 is compared with the sample writings taken from open court and sent to the expert for comparison, it could be seen CRRP 1494/03 3 that handwriting is not that of the petitioner and therefore, it should not have been found that Exhibit P1 cheque was issued towards repayment of the amount due to the first respondent. It is also argued that PW1 has no authority to lodge a complaint. Though he deposed that there was a resolution by the company, no such resolution was produced and the authorisation produced was created subsequently. Learned counsel would argue that there is no evidence to prove that the amount covered by the dishonoured cheque was issued by the petitioner to the first respondent and even though PW1 deposed that Kartha was the Manager, who had dealings with the petitioner, he was not examined and in such circumstances, the conviction is not sustainable. 4. Learned counsel appearing for the first respondent pointed out that both the trial court and the appellate court appreciated the evidence in the proper perspective and in revision, there is no CRRP 1494/03 4 ground to interfere. It is argued that even when PW1 was cross-examined, it was not suggested to PW1 that the handwriting in Exhibit P1 is not that of the petitioner and in spite of the opportunity granted, petitioner did not take steps to send the dishonoured cheque again for comparison and in such circumstances, the grievance that opportunity was not granted is without any merit. Learned counsel would also argue that evidence of PW1 establishes that Exhibit P1 cheque was issued towards the amount due to the first respondent Company, being the amount collected by the petitioner as a dealer and Exhibit P1 cheque was issued towards the amount so due and there is no reason to interfere with the conviction and sentence. 5. The fact that petitioner is the sole proprietor of Maya Marketing Company and was the dealer of the first respondent company is not disputed. Evidence of PW12 with Exhibit P7, the ledger extract of Dhanalakshmi Bank, establish that CRRP 1494/03 5 Exhibit P1 cheque was drawn in the account maintained by the petitioner. The fact that petitioner, as a dealer of the first respondent company, had placed orders and through petitioner, Sewing machines were supplied to the customers were not disputed. Evidence of PW1 establishes that petitioner, as a dealer, collected money and that money is to be paid to the first respondent company. The very case is that towards the amount so due, Exhibit P1 cheque was issued. Evidence of PW1 that amount was due to the first respondent company from the petitioner, as a dealer of the company, was not disproved or proved improbable. Learned Magistrate and learned Additional Sessions Judge, on the evidence, found that evidence of PW1 that Rs.1,80,000/- was due from Integrated Community Health Programme to the the first respondent company is in accordance with the evidence. It is the case of the petitioner that Exhibit P1 cheque was issued towards repayment of CRRP 1494/03 6 that amount. Though petitioner contended that Exhibit P1 cheque was not issued towards any amount due and instead, it was given as security, no evidence was adduced to prove that any such security was furnished, by producing two blank cheques with the first respondent company. Though it was suggested to PW1 that two blank cheques were issued as security, when questioned under Section 313 of Code of Criminal Procedure, case of the petitioner was that three cheques were issued. Even at the time of suggestion made to PW1 or at the time of questioning under Section 313 of Code of Criminal Procedure, petitioner has no case that what was handed over was signed blank cheques. Instead, the plea is only that blank cheques were issued. Signature of the petitioner in Exhibit P1 cheque is not disputed. Even though it was suggested that a signed blank cheque was given and it was made to Exhibit P1 cheque, it was denied, PW1 deposed that petitioner had written in Exhibit CRRP 1494/03 7 P1 in his presence. It was not even suggested to PW1 that the handwriting in Exhibit P1 is not that of the petitioner. True, a petition was subsequently filed by the petitioner to send Exhibit P1 cheque to an expert to compare the handwriting of the petitioner. Forensic Science Laboratory returned the request seeking to forward further documents and handwriting. The proceeding paper shows that thereafter several opportunities were granted and petitioner did not avail of these opportunities or sought to send the cheque once again to an expert. It is, thereafter, the complaint happened to be dismissed and was subsequently remanded by this Court finding that absence of the complaint/first respondent was not wilful. It is, thereafter, petitioner filed another application to compare the handwriting seen in Exhibit P1 with the sample handwritings. True, there is an averment in the said petition that petitioner cannot afford to send the dishonoured CRRP 1494/03 8 cheque to a private expert because of the financial liability. But, that is not a ground to contend that opportunity was not granted. I have verified the handwriting seen in Exhibit P1 with the handwritings collected from the petitioner and sent to Forensic Science Labotratory. From a comparison, it is not possible to hold that the handwriting in Exhibit P1 and others are not that of one and the same person. In such circumstances, finding of the learned Magistrate, as confirmed by the learned Additional Sessions Judge, that Exhibit P1 cheque was issued by the petitioner warrants no interference. So also, the finding that Exhibit P1 cheque was issued towards repayment of the amount due is also in accordance with the evidence and warrants no interference. 6. Though learned counsel argued that PW1 has no authority to file a complaint on behalf of the first respondent, Exhibit P6, the Power of Attornery, establishes that PW1 was authorised by CRRP 1494/03 9 the Company to file a complaint and to prosecute the case. Though it was argued that Exhibit P6 was subsequently created and execution of Exhibit P6 is recent and it was created subsequently, on going through the document, I cannot agree with the submission. If Exhibit P6 was created later, with an intention to show that there is no authority to file a complaint, as canvassed, even the date should have been type written. It is seen that except the date, everything else were type written and when it was executed, the date was put. Signature is also dated the same. In such circumstances, PW1 has authority to file the complaint. 7. Evidence establishes that Exhibit P1 cheque was issued towards the amount due from the petitioner to the first respondent company. Evidence of PW2 also establishes that the cheque was dishonoured for want of sufficient funds. It was also proved that first respondent has complied CRRP 1494/03 10 with all the statutory formalities. In such circumstances, conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal and warrants no interference. 8. Then the only question is regarding the sentence. Learned Magistrate awarded only imprisonment till rising of court and a fine of Rupees Two lakhs with a direction to pay Rs.1,80,000/-, the amount covered by the dishonoured cheque, to the first respondent on realisation. Sentence cannot be said to be excessive. It is only reasonable. In such circumstances, revision fails and is dismissed. Petitioner is directed to appear before the learned Magistrate on 29.6.2010. 28th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1494/03 11 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1494 of 2003 -------------------------- ORDER 28th May, 2010