IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 Crl.Rev.Pet.No. 1073 of 2002(C) -------------------------------------------- CRL.A.NO.562/2001 OF IV ADDL.SESSIONS COURT, ERNAKULAM, CC.NO.1434/1994 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- M/S. SHARES INDIA, THRISIVA BUILDINGS, NEW CHURCH CIRCLE, THRISSUR, REP. BY PROPRIETOR, DENNY, S. KOLANGADAN. BY ADV. MR.P.M.ZIRAJ. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. MUTHOOT CAPITAL SERVICES, MUTHOOT TOWERS, M.G.ROAD, KOCHI, REP. BY T.N.BHUVANENDRAN, ASST. MANAGER. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY MR.K.P.DANDAPANI, SENIOR ADVOCATE, R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/11/2009,ALONG WITH CRL.R.P. NO. 1075/2002,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 1073/2002-C: ORDER ON CRL.M.P. NO. 5741/2002 IN CRL.R.P. NO. 1073/2002-C DISMISSED 06/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos.1073 & 1075 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of November, 2009 ORDER The revision petitioners and the revision first respondent in both these revision petitions are the same. Revision petitioner is M/s. Shares India, represented by Proprietor, the accused. First respondent/complainant is Muthoot Capital Services represented by Assistant Manager T.N.Bhuvanendran. 2. The revision petitioner/accused was convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 55,000/-, in default, to undergo simple imprisonment for three months by the Chief Judicial Magistrate, Ernakulam by judgment dated July 23, 2001 in C.C.No.1433/1994. Out of the fine amount, Rs. 50,000/- was ordered to be paid to the complainant. On appeal , the IV Additional Sessions Jude, Ernakulam by judgment dated July 1, 2002 in Crl.Appeal No.561/2001 confirmed the conviction of revision Crl.R.P.No.1073 & 1075 of 2002 Page numbers petitioner under Section 138 of Negotiable Instruments Act, but modified the sentence as simple imprisonment for three months. Sentence of fine and direction for payment of compensation was maintained. The accused challenged his conviction and sentence in Crl.R.P.No.1075/2002. 3. Revision petitioner/accused was also convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 3,70,000/- in default, to undergo simple imprisonment for three months by the Chief Judicial Magistrate , Ernakulam by judgment dated 23/07/2001 in C.C.No.1434/1994. Out of the fine amount, Rs. 3,60,000/- was ordered to be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. On appeal the IV Additional Sessions Court, Ernakulam by judgment dated July 1, 2002 in Crl.Appeal No.562/2001 confirmed the conviction of revision petitioner , but modified the sentence to simple imprisonment for six months. Sentence of fine and the direction to pay compensation was maintained. The revision petitioner/accused challenges his conviction and sentence Crl.R.P.No.1073 & 1075 of 2002 Page numbers in Crl.R.P.No.1073/2002. 2. The case of the complainant as testified by him as PW1 before the trial court and as detailed in the complainant in brief is this : The accused issued the cheque Ext.P2 dated 25/10/1994 for Rs. 50,000/- and Ext.P3 cheque dated 3/11/1994 drawn on the South Indian Bank of Thrissur to discharge his liability towards the complainant which when presented for collection were returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notices Exts.P8 and P9 the accused did not repay the amount. Hence the complaints. 3. On receipt of the complaints, the trial court recorded the sworn statement of PW1 in both the cases and took cognizance of the case. On appearance before the trial court, the accused pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. As the complainant and the accused in both these cases are the same, the trial court jointly tried both these cases . PWs 1 and 2 were examined and Exts.P1 to A12 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C, the Crl.R.P.No.1073 & 1075 of 2002 Page numbers accused denied the entire transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offences punishable under Section 138 of Negotiable Instruments Act, convicted him and sentenced him as aforesaid. On appeal, the lower appellate court confirmed his conviction, but sentence is modified as aforesaid. Now the accused has come up in revision challenging his conviction and sentence in both the above cases. 5. Heard the counsel for both the parties. 5. The following points arise for consideration in both the revision petitions:- 1) Whether the conviction of the revision petitioner in both the cases by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner in both the cases is excessive or unduly harsh? Crl.R.P.No.1073 & 1075 of 2002 Page numbers 6. PWs.1 and 2 were examined and Exts.P1 to P12 were marked on the side of the complainant. PW1 the Assistant Manager of the complainant company testified in terms of the complaint. I have gone through his evidence. Nothing was brought out in cross- examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P12. Ext.P1 is the copy of the extract of the resolution of the Board of Directors of the company authorizing PW1 to conduct this case. Ext.P2 is the cheque for Rs.50,000/- dated October 25, 1994 and Ext.P3 is cheque for Rs.3,57,305/- dated November 3, 1994. Exts.P4 to P7 are the dishonour memo of the bank. Exts.P8 and P9 are the demand notices issued to the accused demanding the amount covered by Exts.P2 and P3 cheques. Exts.P10 and P11 are acknowledgment cards. Ext.P12 is the ledger extract of the account of the accused. PW2 is the present Manager of the complainant company. 7. The case of the accused when questioned under section 313 Cr.P.C. was that his friend one Rasheed has pledged some shares belonging to him with the complainant company, that the accused was the person who introduced Rasheed to the said company and that as Crl.R.P.No.1073 & 1075 of 2002 Page numbers security he issued cheques Exts.P2 and P3. No document is produced by the accused to prove his case. Further as the accused admitted execution of cheques Exts. P2 and P3, presumption under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. Therefore, I am inclined to hold that the trial court as well as the appellate court is perfectly justified in accepting the evidence of PWs.1 and 2 in both the cases and coming to the conclusion that the accused has committed an offence punishable under section 138 of the Negotiable Instruments Ac. That being so, the conviction of the accused under section 138 of the Negotiable Instruments Act in both the cases have to be confirmed and I do so. 8. As regards the sentence, in C.C.No.1433 of 1994 the trial court has imposed a sentence of rigorous imprisonment for six months and fine of Rs.55,000/-, in default to undergo simple imprisonment for three months and out of the fine amount Rs.50,000/- was ordered to be paid to the complainant as compensation. In C.C.No.1434 of 1994 the petitioner was sentenced to undergo rigorous imprisonment for one Crl.R.P.No.1073 & 1075 of 2002 Page numbers year and to pay fine of Rs.3,70,000/-, in default to undergo simple imprisonment for three months and out of the fine amount, Rs.3,60,000/- was ordered to be paid to the complainant as compensation. On appeal, the substantive sentence imposed in C.C.No.1433 of 1994 was reduced to simple imprisonment for three months while in C.C.No.1434 of 1994 the substantive sentence was reduced to simple imprisonment for six months. 9. The transaction is of the year 1994. Therefore, I feel that as far as the substantive sentence of imprisonment is concerned, imprisonment till the rising of court in each case would meet the ends of justice. But the order of fine imposed by the trial court in both the cases, which was confirmed by the lower appellate court, requires no interference by this Court. 10. In the result, Crl.R.P. Nos.1073 and 1075 are allowed in part. The conviction of the revision petitioner in both the revision petitions under section 138 of the Negotiable Instruments Act, rendered by the trial court, which was confirmed in appeal, is upheld. In Crl.R.P. No.1073 of 2002, the revision petitioner is sentenced to undergo Crl.R.P.No.1073 & 1075 of 2002 Page numbers imprisonment till the rising of court and to pay fine of Rs.55,000/- ,in default to undergo imprisonment for three months. In Cr.R.P. No.1075 of 2002 the revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay fine of Rs.3,70,000/-, in default to undergo simple imprisonment for three months. The entire fine amount, if realized, shall be paid to the complainant as compensation as provided under section 357(1) of the Cr.P.C. The amount already deposited by the revision petitioner before the trial court shall be adjusted towards the fine amount. For payment of balance amount, three months' time is granted. The complainant is permitted to withdraw the amount. The revision petitioner shall surrender before the trial court on or before 15-12-2009 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv/mn. Crl.R.P.No.1073 & 1075 of 2002 Page numbers