IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 Crl.Rev.Pet.No. 405 of 2005(A) ------------------------------------------------- CC.33/2002 of JFCM-II(MOBILE), KOZHIKODE CRA.92/2003 of SESSIONS COURT, KOZHIKOE .................... REVN. PETITIONER/APPELLANT/ACCUSED: V. KRISHNADAS, S/O. RARU, VENGALAPPURATH HOUSE, AZCHAVATTOM, P.O. MANKAVU, CALICUT-7. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS/COMPLAINANT & STATE: 1. M/S. IRON GARNERS, REPRESENTED BY MANAGING PARTNER P.M. ALIKOYA, (died) S/O. K.P. ASSAN KOYA, PUTHIYAPALAM ROAD, CALICUT-2. P.M.UMMER KOYA, S/O K.P.ASSAN KOYA, AGED 59 IS IMPLEADED AS MANAGING PARTNER OF THE FIRST RESPONDENT FIRM INSTEAD OF DECEASED P.M.ALIKOYA AS PER ORDER DT. 26.3.07 IN CRMA 3424/07. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.AVM.SALAHUDIN FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRMA NO.2406/2005 IN CRRP 405/2005 DISMISSED 7.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.405 of 2005 -------------------------- ORDER Petitioner, the accused in C.C.No.33/2002 on the file of Judicial First Class Magistrate's Court-II, Kozhikode, filed this revision challenging the conviction for the offence under Section 138 of Negotiable Instruments Act, as confirmed by the learned Sessions Judge, Kozhikode in Crl.A.No.92/2003. First respondent lodged the complaint contending that the Firm is engaged in the business in Iron Rolling Shutter parts and allied items and petitioner used to purchase goods on credit and on 9.11.2001, evidenced by Exhibit P6(a), petitioner purchased goods for Rs.26,150/- and towards its payment issued Exhibit P1 cheque drawn in his account maintained in Mankav Branch of Nedungadi Bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds under CRRP 405/05 2 Exhibit P2 dishonour memo and in spite of demand under Exhibit P3 notice and received by the petitioner under Exhibit P4, the amount covered by the dishonoured cheque was not paid by the petitioner and thereby committed the offence under Section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. 2. First respondent was examined as PW1 and Exhibits P1 to P10 were marked. On the side of the petitioner, he was not examined and DW1 was examined and Exhibits D1 to D3 were marked. 3. Learned Magistrate, on the evidence, found that petitioner purchased goods from the first respondent Firm and issued Exhibit P1 cheque towards its value and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities and petitioner, thereby, committed the offence under Section 138 of Negotiable Instruments Act. He was convicted and sentenced to simple imprisonment for CRRP 405/05 3 six months and a compensation of Rs.30,000/- with interest at 9% from the date of conviction till realisation and in default, simple imprisonment for three months. 4. Petitioner challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A. No.92/2003. Learned Sessions Judge, on re- appreciation of evidence, confirmed the conviction, but modified the substantive sentence to simple imprisonment for one month. This revision is filed challenging the conviction and sentence. 5. Learned counsel appearing for the petitioner and first respondent were heard. 6. Subsequent on the death of the original Managing Partner, petitioner impleaded the successor Managing Partner as per order in Crl.M.Appl.No.3424/07. 7. Learned counsel appearing for the petitioner argued that courts below should not have believed the evidence of PW1 and the computer statement CRRP 405/05 4 should not have been relied on and there is no acceptable evidence to prove that petitioner purchased goods from the first respondent Firm or issued Exhibit P1 cheque towards its payment. Learned counsel appearing for the first respondent pointed out that Exhibit P6(a) establishes that petitioner purchased goods for Rs.25,144/- on 9.11.2001 and including the sale tax, the amount due is Rs.26,150/- and Exhibit P1 cheque was issued for the same and Exhibit P7(a) entry establishes that Exhibit P6(a) is genuine and the defence case is highly improbable and courts below properly appreciated the evidence and there is no reason to interfere with the conviction and sentence. 8. Exhibit P6(a), copy of the relevant page of the Invoice Book, establishes that on 9.11.2001, petitioner purchased goods from the first respondent Firm, as stated by PW1. Exhibit P7(a), copy of the relevant page of the Sale Note Book, shows that the details entered in Exhibit P6(a) is CRRP 405/05 5 correct. It strengthens the case of the first respondent that under Exhibit P6(a) petitioner purchased the goods. As against this case, petitioner did not adduce any evidence. In spite of Exhibit P3 notice, which was received by the petitioner, he did not send any reply. It is not the conduct of the petitioner, if a cheque was not issued towards payment of the amount due. Moreover, the defence, at the time of questioning under Section 313 of Code of Criminal Procedure, was that Santhosh, an employee, had asked for money and when petitioner disclosed that he is not having cash with him, as security, he asked for a cheque and Exhibit P1 cheque was issued to him. If an employee of the petitioner had demanded cash, it is not known why a cheque is to be issued as security. If a cheque was issued to Santhosh, it can only be for encashing the same. Petitioner has no case that he issued a blank cheque. When the entire evidence is appreciated in the proper perspective, I find no CRRP 405/05 6 reason to interfere with the concurrent findings of the courts below. Evidence establishes that Exhibit P1 cheque was issued towards the value of the goods purchased from the first respondent and it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under Section 142 of Negotiable Instruments Act. Therefore, the conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 9. Then the only question is regarding the sentence. There is force in the submission of the learned counsel that learned Magistrate should not have awarded compensation, like a decree in a civil suit. The cheque is for Rs.26,150/-. It was issued on 9.11.2001 for the purchase made on that day. It is a commercial transaction. In such circumstances, considering the entire facts and circumstances of the case, interest of justice will be met if the CRRP 405/05 7 sentence is sufficiently modified, avoiding the substantive sentence of imprisonment as modified by the learned Sessions Judge. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified. In supersation of the modified sentence passed by the learned Sessions Judge, petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.35,000/- and in default simple imprisonment for two months. Petitioner is permitted to pay the compensation directly to the first respondent and produce the receipt before the Magistrate and establish that compensation is paid. Petitioner is directed to appear before the Magistrate on 6.7.2010. Judicial First Class Magistrate-II, Kozhikode is directed to execute the sentence. 7th June, 2010 (M.Sasidharan Nambiar, Judge) tkv