IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 Crl.Rev.Pet.No. 4235 of 2008() ------------------------------ CRA.1/2007 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA STC.301/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- PRIYESH KUMAR T.K., S/O.THANKAPPAN NAYAR, GIREESH BHAVAN, PADINHARATHARA, VYTHIRI TALUK. BY ADV. SRI.SARVOTHAMAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. V.N.MANOJAN, S/O.APPOOTTY, AGED 34 YEARS, LEGAL ASSISTANT, SREE GOKULAM CHIT AND FINANCE COMPANY PRIVATE LIMITED, MANANTHAVADY BRANCH. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 4235 OF 2008 =========================== Dated this the 27th day of January,2009 ORDER Revision petitioner is the accused and first respondent the complainant in S.T.C.301/2005 on the file of Judicial First Class Magistrate, Mananthavady. Revision petitioner was convicted and sentenced to imprisonment till rising of court and to pay a compensation of Rs.72,600/- and in default simple imprisonment for three months for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction before Additional Sessions Court, Kalpetta in Crl.A.1/2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. CRRP 4235/2009 2 2. Learned counsel appearing for the revision petitioner was heard. 3. The argument of the learned counsel is that courts below did not properly appreciate the evidence and it should have been found that PW1 has no authority to file a complaint as he is neither the payee nor the holder in due course. It was argued that though PW1 deposed that there is a power of attorney executed authorising him to lodge the complaint, no such power of attorney was produced and Ext.P1 resolution was passed on 16.9.2003, when Ext.P2 cheque was allegedly issued by the petitioner only on 10.11.2004 and therefore PW1 who is only a legal Assistant is not entitled to lodge the complaint and on that sole ground the conviction is to be set aside. Learned counsel also argued that it is the case of first respondent that revision petitioner subscribed to a chitty and the amount covered under Ext.P2 is the balance amount due and from the evidence it should CRRP 4235/2009 3 have been found that Ext.P2 cheque was issued by the revision petitioner not towards discharge of any debt or liability but was given only as security at the time when he received the money on prizing the chitty. It is therefore argued that the conviction is not sustainable. Learned counsel also argued that evidence of PW1 does not establish execution of the cheque and no presumption under section 139 of Negotiable Instruments Act could have been drawn and though it is deposed that there are records in the custody of first respondent to establish the actual amount due, no such records were produced and therefore it should have been found that Ext.P2 cheque was not issued towards discharge of any debt or liability and therefore the conviction is bad. Learned counsel finally argued that in any case there cannot be a default sentence when compensation is awarded under sub section (3) of Section 357 of Code of Criminal Procedure and to CRRP 4235/2009 4 that extent the sentence is illegal. 4. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. 5. Though the authority of PW1 was challenged by the learned counsel, as rightly found by the courts below Ext.P1 resolution of the Company authorises first respondent to lodge the complaint on behalf of the Company. When the resolution of the Company authorises PW1 to lodge the complaint, and the complaint is on behalf of the Company, the payee under the cheque separate power of attorney is not necessary. Therefore on that ground the conviction cannot be challenged. 6. The evidence of PW1 was appreciated by the courts below in the proper perspective. Evidence of PW1 establish that Ext.P1 cheque was issued by the revision petitioner in his presence and the cheque was issued towards the balance amount due. Though it was argued that there was no evidence to CRRP 4235/2009 5 prove the exact amount due, when PW1 was cross examined it is the revision petitioner who produced Ext.D1 passbook which establish that he has remitted only Rs.1,18,875/-. Inclusive of the dividend for which petitioner is entitled to namely Rs.19,880/-, the amount paid to the credit of the revision petitioner under that chitty is Rs.1,38,455/-. It is not disputed that revision petitioner was a subscriber to the chitty for Rs.2,00,000/- and he had prized the chitty for Rs.1,50,000/-. Revision petitioner is bound to repay Rs.2,00,000/- though he prized it only for Rs.1,50,000/-. Deducting Rs.1,38,455/- revision petitioner is liable to pay the balance inclusive of the interest. Evidence establish that Ext.P2 cheque is issued towards repayment of the balance with interest. In such circumstance, I find no reason to interfere with the findings of the courts below that Ext.P2 cheque was issued towards discharge of the liability under the chitty CRRP 4235/2009 6 transaction. 7. Evidence establish that first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. In such circumstance, conviction of the revision petitioner for the offence under section 138 of N.I. Act is perfectly legal. 8. Then the only question is regarding the sentence. Learned Magistrate awarded a sentence of imprisonment till rising of court and compensation which was only for the amount covered by the dishonoured cheque. To that extent the sentence is perfectly legal. But as rightly pointed out by learned counsel when compensation is awarded under sub section (3) of Section 357 of Code of Criminal Procedure, there cannot be a default sentence. Therefore the direction to undergo default sentence for the compensation is illegal and it is set aside. Criminal Revision Petition is allowed in part. CRRP 4235/2009 7 Conviction of the revision petitioner and the sentence is confirmed. But the direction to undergo default sentence for the compensation awarded under section 357(3) of the Code of Criminal Procedure is set aside. Revision petitioner is directed to appear before the Judicial First Class Magistrate, Mananthavady on 27.3.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006