IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.Rev.Pet.No. 1962 of 2010(A) ------------------------------------- (CRA.777/2009 of ADDL.SESSIONS JUDGE (ADHOC-II), ERNAKULAM ST.2372/2008 of JUDICIAL MAGISTRATE OF FIRAST CLASS - VI, PARAVUR) .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ------------------------------------------------------- 1. M/S.VYSALI PHARMACEUTICALS LTD., A PUBLIC LIMITED COMPANY HAVING ITS REGISTERED OFFICE PRESENTLY AT 34/754 & 755 - EDAPPALLY, KOCHI-24, REP.BY ITS MANAGING DIRECTOR, DR.A.D.KRISHNAN, AGED 62 YEARS. 2. DR.A.D.KRISHNAN, AGED 62 YEARS, MANAGING DIRECTOR, M/S.VYSALI PHARMACEUTICALS LTD. RESIDING AT 'SWARAM', GOVT.HIGH SCHOOL ROAD, EDAPPALLY, KOCHI-24. 3. DR.(MRS.) SAVITHRI KRISHNAN, AGED 61 YEARS, W/O.A.D.KRISHNAN, DIRECTOR, M/S.VYSALI PHARMACEUTICALS LTD. BY ADV. SRI.K.R.VINOD RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------------------------------------------------- 1. STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LIMITED (KSIDC), CHOICE TOWERS, MANORAMA JUNCTION, COCHIN-36, REP.BY ITS MANAGER (LEGAL) SMT.V.R.USHA. R1 BY PUBLIC PROSECUTOR SMT. P.N. SUMANGALA R2 BY ADVS. SRI.SAJI VARGHESE SMT.MARIAM MATHAI THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON 24/09/2010 PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.1962 of 2010 ---------------------------------------- Dated the 24th day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act are the revision petitioners as they are aggrieved by the conviction and sentence imposed against them as per the impugned judgments. 2. The complainant, the 2nd respondent herein, is a Government owned company namely, Kerala State Industrial Development Corporation Ltd.(KSIDC). The case of the complainant is that the first accused is a company and the 2nd accused is the Managing Director and the 3rd accused is the Director of the First revision petitioner/Ist accused company. A loan was availed for and on behalf of the first accused and towards the liability owed by the accused, the 2nd accused issued two signed cheques dated 27.6.2008 and 30.6.2008 for an amount of Rs.3,33,333/- (Rs.Three lakhs thirty three thousand three hundred and thirty three only) and Rs.1,00.000/- (Rs.one lakh only) drawn on the account of A1 company kept with the State Bank of Travancore Overseas Branch, Ernakulam and the said cheque was issued by the accused to the complainant CRRP. 1962/10 -:2:- towards the legally enforceable debt, which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioners/accused have miserably failed to repay the cheque amount in spite of a formal notice caused to issue by the complainant. With the said allegation, the complainant approached the Chief Judicial Magistrate Court, Ernakulam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.2372/2008 which was subsequently transfered to the court of Judicial First Class Magistrate -VI, the present trial court. During the course of trial, from the side of the complainant, PW1 was examined and Exts.P1 to P8 were marked. Absolutely, no evidence either oral or documentary was produced from the side of the defence. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P2 and P3 cheques were issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioners-accused and found that the revision CRRP. 1962/10 -:3:- petitioners-accused are guilty. Consequently, the accused are convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the Ist revision petitioners/accused to pay a fine of Rs.5,000/-, whereas 2nd and 3rd accused are sentenced to undergo simple imprisonment for six months and also directed to pay a compensation of Rs.2,20,000/- each under section 357(3) Cr.P.C and the default sentence is fixed as simple imprisonment for one month each. 3. Aggrieved by the above order of conviction and sentence, though an appeal was filed at the instance of the revision petitioners, by judgment dated 3.4.2010 in Crl.A.No.777/2009, the Addl.Sessions Judge (Adhoc-II), Ernakulam disposed of the appeal confirming the conviction. But when the sentence with respect to the first accused is confirmed by the appellate court, in supersession of the sentence imposed on the 2nd and 3rd revision petitioners/A2 and A3 by the trial court, the sentence of imprisonment is modified and reduced to one day simple imprisonment, i.e till the rising of the court and each of them are sentenced to pay a fine of Rs.2,20,000/- (Rs.Two lakhs and twenty thousand only)and also CRRP. 1962/10 -:4:- directed that the amount shall be deposited in the trial court within one month from the date of the appellate court judgment and, in default, accused Nos. 2 and 3 are directed to undergo simple imprisonment for three months each. It is also ordered that the fine amount fixed, on realisation, shall be given to the complainant as compensation under section 357(1) (b) of Cr.P.C. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioners-accused imposing sentence against them. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioners-accused. Though the revision petitioners are heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no CRRP. 1962/10 -:5:- reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioners to receive the sentence and to pay the fine amount. It is also submitted that the first accused company is now running by the workers of the said company due to the financial crisis of the management of the company. Revision petitioners 2 and 3/A2 and A3 are not in a position to run the same and if the functioning of the company is stopped, it will adversely affect the workers. Accordingly, the learned counsel submitted that reasonable time may be granted to the revision petitioners to raise the fund so as to pay the fine. 6. Having regard to the facts and circumstances involved in this case, I am of the view that the said submission requires positive consideration. Accordingly, while confirming the conviction as recorded by the courts below, a breathing time can be granted to the revision petitioners to serve the sentence and CRRP. 1962/10 -:6:- the fine amount imposed against the first accused can be modified. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioners/accused as recorded by the courts below for the offence under section 138 of the N.I.Act. In the light of the facts and circumstances referred above, the fine amount ordered to pay by the Ist accused is reduced to Rs.1000/-(Rs.One thousand only) and while confirming the sentence of imprisonment and also the sentence to pay fine of Rs.2,20,000/- against each of the accused Nos.2 and 3, the revision petitioners are given five months time to deposit the fine amount and it is made clear that the default sentence fixed by the appellate court will be attracted only in case of failure in depositing the fine amount within the above period fixed by this court. Accordingly, the revision petitioners 2 and 3 are directed to appear before the trial court on 24th February, 2011 to receive the sentence and to deposit the fine amount. If there is any default on the part of revision petitioners 2 and 3 in appearing before the trial court as directed above, the trial court is free to take coercive steps against them to secure their CRRP. 1962/10 -:7:- presence and to execute the sentence and for realisation of the fine amount. On realisation of the fine amount, the entire amount shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. The coercive steps if any pending against the revision petitioners shall be deferred till 24.2.2011. This Crl.R.P. is disposed of Accordingly. V.K.MOHANAN, JUDGE kvm/-