IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 Crl.Rev.Pet.No. 97 of 2009() ---------------------------- CRA.951/2005 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.112/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- CHANDRA BABU, PROPRIETOR, M/S LAKSHMI ENTERPRISES, CHANDRA THEKKEVEETTIL HOUSE, KANDOTH DESOM, VELLUR AMSOM, P.O. PAYYANNUR. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S)/COMPLAINANT & JAYA: --------------- 1. PRAVASI MARKETING & SALES (P) LTD., OFFICE NO.4, OASIS COMPLEX, PERINGAVU, THRISSUR, REPRESENTED BY ITS SALES OFFICER. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO. 97 OF 2009 ------------------------------------------ Dated 19th January 2009 O R D E R Revision petitioner is the accused and first respondent the complainant in C.C.112/2001 on the file of Judicial First Class Magistrate-I, Thrissur. Revision petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged conviction and sentence before Sessions court, Thrissur in Crl.A.951/2005. Learned Additional Sessions Judge on re-appreciation of evidence confirmed conviction and sentence and dismissed appeal. It is challenged in revision petition. 2. Learned counsel appearing for revision petitioner was heard. 3. Argument of learned counsel is that though PW1 was examined and his evidence was relied upon by the courts below, PW1 had no authority to give evidence. It was argued that evidence of PW1 establish that he was an employee of the sister concern CRRP 97/09 2 company of first respondent company and as he is not an employee of first respondent company, he is not entitled to represent first respondent and give evidence and his evidence should not have been relied on. Learned counsel argued that though Ext.P4 authorisation was produced, he cannot give evidence as to what transpired prior to the authorisation and as there is no other evidence, courts below should have acquitted revision petitioner. Learned counsel also argued that evidence of DW1 Balakrishnan establish that he issued Ext.D2 damage return format and when prosecution case is that Ext.P5 cheque was issued towards the amount due under Ext.D1 invoice, which was returned under Ext.D2 courts below should have found that Ext.P1 cheque was not issued towards discharge of existing liability. Learned counsel also argued that from the evidence of DW1 it is clear that Ext.P5 cheque was issued as a blank cheque and as security and it was not a cheque issued towards the amount due under Ext.D1 invoice and therefore conviction is not sustainable. 5. On hearing the learned counsel I do not find any reason to interfere with the conviction. Though PW1 CRRP 97/09 3 admitted that he is not an employee of first respondent company but a employee of sister concern company Ext.P4 resolution of first respondent company establish that PW1 was authorised to represent the company and the original representative, who lodged complaint had left the company and subsequent representative died and so PW1 was authorised to give evidence. Question is whether PW1 has personal knowledge about the transaction. Evidence of PW1 is that he has personal aware of the transaction as he was present at that time and therefore he is competent to give evidence. Learned Magistrate and learned Sessions Judge accepted that evidence. On going through the deposition made available by learned counsel, I do not find any reason to take a different view. Evidence establish that PW1 has personal knowledge on the transaction and is authorised by first respondent company to give evidence. 6. Evidence of PW1 establish that Ext.P1 cheque was issued towards the amount due, when the articles were delivered to revision petitioner. Fact that there is delivery evidenced by Ext.D1 is not disputed. What was contended by revision petitioner is that articles CRRP 97/09 4 delivered were damaged and therefore they were returned immediately. Evidence of DW1 and Ext.D2 damage return format sent by DW2 was relied on. Argument of learned counsel is that in the light of the evidence of DW1 courts below were not justified in rejecting evidence of Dw.1. Deposition of DW1 was made available. As rightly found by courts below, evidence of DW1 establish that Ext.D2 is not a proper damage return format which should have been prepared as per rules. It is admitted by DW1 that when damage return form is received, it should contain the details including the vehicle in which article was delivered and name of its driver and other particulars which are absent in Ext.D2. It was also admitted by DW1 that he was terminated from the service by first respondent later and revision petitioner was appointed as the agent by DW1. In such circumstances, courts below were justified in holding that Ext.D2 was subsequently created with the help of DW1. Evidence of DW1 further establish that Ext.P5 cheque was issued towards the amount due under Ext.D1 invoice. In the light of the evidence courts below were justified in holding that Ext.P5 cheque was issued by the revision petitioner towards CRRP 97/09 5 discharge of existing liability and the cheque was dishonoured for want of sufficient funds and first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 7. Then the only question is regarding sentence. Learned Magistrate sentenced revision petitioner only to imprisonment till rising of court in addition to compensation of Rs.35,000/-. Ext.P5 cheque is for Rs.35,076/-. In such circumstances, I find no reason to interfere with sentence also. Revision is dismissed. Revision petitioner is directed to appear before Judicial First Class Magistrate-I, Thrissur on 11/3/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.