IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 CRL.REV.PET.NO. 2059 OF 2009() ---------------------------------------------- CRA.54/2009 OF ADDITIONAL SESSIONS JUDGE (ADHOC-II) ERNAKULAM CC.2348/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ---------------------------------------------------------------- 1. SALY ELIAS, W/O.ELIAS, PROPRIETOR, ONSET ELECTRICAL APPLIANCES, M.P/5-84, N.MAZHUVANOR RESIDING AT KAKKOTTICHALIL, KADAKKANAD P.O., KOLENCHERRY. 2. ONSET ELECTRICAL APPLIANCES, M 7/584, N.MAZHUVANOR REPRESENTED BY ITS PROPRIETOR, SALY ELIAS, W/O.ELIAS, KAKKOTTICHALIL, KADAKKANAD P.O., KOLENCHERRY. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ARIHANT IMPEX (KERALA), 36/2686, AZAD ROAD, KALOOR, KOCHI - 17 REPRESENTED BY ITS BRANCH MANAGER FEENA JOSE, ARIHANT IMPEX (KERALA). BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2059 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of June, 2009 O R D E R -------------- Petitioner No.2 is a proprietory concern owned by petitioner No.1. They faced trial in the court of learned Judicial First Class Magistrate-II, Ernakulam in C.C.No.2348 of 2003 for offence punishable under Section 138 of the Negotiable Instruments Act on a complaint preferred by respondent No.2, also a proprietory concern represented by its Branch Manager. Respondent No.2 is engaged in business of supply of electrical goods. Petitioners purchased electrical goods from respondent No.2 on credit and for the sum of Rs.1,07,675/- due issued Ext.P2, cheque dated 3.9.2003. That cheque was dishonoured for insufficiency of funds as proved by Ext.P3, memo dated 11.9.2003. On getting intimation of dishonour as per Ext.P4, memo dated 5.9.2003 respondent No.2 issued notice to petitioners on 18.9.2003. Notice was served on the petitioners. Issue and service of notice of are proved by Exts.P5 and P6. Dishonour of the cheque for reason stated above is proved by Exts.P2 and P3. Power of Attorney holder of respondent No.2 gave evidence as P.W.1. He proved Exts.P8 and P9 series to show that Rs.1,07,675/- was due to respondent No.2. Petitioners contended that at the time of initiation of business CRL. R.P. No.2059 of 2009 -: 2 :- transaction between them and respondent No.2 signed blank cheques were taken and one of which has been misused. It is contended that finding of courts below regarding execution of the cheque is not correct. 2. Exhibit P7 series are invoices for the period from 4.12.2002 to 13.5.2003. Exhibit P8 series are the corresponding delivery chalans. Evidence of P.W.1 and Exts.P7 and P8 series show that petitioners purchased goods from respondent No.2 for the sum of Rs.1,07,675/- on credit. Exhibit P9 series are the relevant pages of the account maintained by respondent No.2. Those documents show that as on 3.9.2003 Rs.1,07,675/- was due to respondent No.2. P.W.1 gave evidence that it is for payment of the said amount that petitioners issued Ext.P2, cheque dated 3.9.2003. There is no serious challenge to Exts.P7 to P9 series. There is also no reason to reject Exts.P7 to P9 series and evidence of P.W.1 regarding the transaction. In the light of that, contention of petitioners that signed blank cheque taken at the time of starting the business transaction between petitioners and respondent No.2 would have been misused cannot be accepted. Moreover petitioners did not reply to the notice served on them. Hence their conviction under Sec.138 of the Act required no CRL. R.P. No.2059 of 2009 -: 3 :- interference. 3. Learned magistrate sentenced petitioner No.1 to undergo simple imprisonment for three months, payment of fine of Rs.1,50,000/- and in default of payment to undergo simple imprisonment for one month. Petitioner No.2 was sentenced to pay fine of Rs.1,000/-. Appellate court modified substantive sentence of petitioner No.1 as simple imprisonment till rising of the court, payment of fine of Rs.107,675/- and in default of payment to undergo simple imprisonment for three months. Sentence of fine of Rs.1,000/- imposed on petitioner No.2 was confirmed. It was further directed that out of fine if realised, Rs.1,07,675/- shall be given to respondent No.2. Having regard to the nature of offence and the amount involved there is little reason to interfere with the sentence as modified by the appellate court. 4. Counsel for petitioner requested six months’ time to deposit the fine. Liability arose out of commercial transaction. Transaction was for the period from 4.12.2002 to 13.5.2003. Amount due remains unpaid. Hence request for six months’ time cannot be granted. Having regard to the circumstances stated by learned counsel petitioners are granted three months’ time to deposit the CRL. R.P. No.2059 of 2009 -: 4 :- fine in the trial court. Resultantly, this revision fails. It is dismissed. Petitioners are granted three months’ time from this day to deposit the fine as ordered by the appellate court. Petitioner No.1 shall appear in the trial court on 5.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv