IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 CRL.REV.PET.NO. 1831 OF 2009() ---------------------------------------------- CRA.233/2006 OF II ADDL. SESSIONS COURT, PALAKKAD CC.666/2003 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S): APPELLANT ------------------------------------------------- M.S. KUNJU, S/O. CHANGILI NAIDU, MANGARA VEEDU, PATTIPARAMBU, THIRUVILWAMALAI, THRISSUR. BY ADV. SRI.G.HARIHARAN RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. M/S. PAZHAMBALACODE KURIES AND LOANS, REPRESENTED BY ITS CHAIRMAN, BHASKARAN, S/O. KUNJIRAMAN NAIR, MELEDATHU KALAM, KODATHUR, PAZHAYANNOOR, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1831 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of June, 2009 O R D E R -------------- Public prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in the revision which is not prejudicial to respondent No.1. 2. Petitioner before me is accused No.1 in C.C. No.666 of 2003 of the court of learned Judicial First Class Magistrate, Alathur. Respondent No.1, a Public Limited Company represented by its Chairman and Director prosecuted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) alleging that wife of petitioner had joined a Kuri conducted by respondent No.1, bid the same and received the amount undertaking to pay the future installments without default. She defaulted payment of installments. Hence her husband, petitioner issued Ext.P1, cheque for Rs.45,335/- dated 7.7.2003 for the discharge of the said debt/liability. That cheque was dishonoured on 21.7.2003 for insufficiency of funds. On getting dishonour intimation respondent No.1 issued statutory notice to the petitioner on 24.7.2003. That notice was served on him on 27.7.2003. Petitioner did not reply. Nor did he comply with the demand. Hence the complaint. CRL. R.P. No.1831 of 2009 -: 2 :- 3. The Chairman and Director of respondent No.1 gave evidence as P.W.1 and proved Exts.P1 to P8. He spoke to the transaction, liability and the petitioner issuing the cheque to discharge that liability. That the cheque was dishonoured for insufficiency of funds and that statutory notice was served on the petitioner are proved and not challenged before me. Petitioner when questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”) denied having any transaction with respondent No.1 and pleaded that he lost a cheque leaf in the year 2001 which respondent No.1 somehow got custody, forged his signature and presented for encashment. In view of the contention raised by the petitioner regarding competence of P.W.1 to give evidence, respondent No.1 filed C.M.P. No.4316 of 2005 to re-open the case and produced a document. That petition was allowed and the document was marked in evidence as Ext.P9 by recalling P.W.1. Petitioner was further questioned under Sec.313 of the Code when also he took the same stand. He did not adduce any evidence in support of that contention. The cheque in question was issued by the petitioner for the discharge of a legally enforceable debt/liability. Learned counsel for petitioner contended that the finding is not correct. 4. Learned magistrate found that Exts.P6 to P9 proved competency of P.W.1 as Chairman and Director of the Company to CRL. R.P. No.1831 of 2009 -: 3 :- represent it. Learned magistrate also referred to clause 58(d) of the Articles of Association (Ext.P9) to hold that even in the absence of a separate authorisation P.W.1 as Chairman and Director is competent to represent the company. There is no reason to interfere with the findings entered by the courts below in that regard in the light of Exts.P6 to P9. 5. Exhibit P1 is the disputed cheque. P.W.1 gave evidence regarding the transaction between respondent No.1 and wife of the petitioner and petitioner shouldering the liability by issuing Ext.P1, cheque. As regards the contention of the petitioner that he lost the cheque sometimes in 2001 is concerned apart from so suggesting to P.W.1 he did not adduce any evidence. It is true that petitioner claimed that he did not write or sign Ext.P1. But P.W.1 asserted that cheque is issued by the petitioner. Learned magistrate referred to the relevant circumstances in paragraph 12 of the judgment to hold that the said contention of the petitioner cannot be believed. It is difficult to think that in spite of a cheque leaf being lost from his possession, petitioner did not intimate his bank about the same and request to stop payment. It is also difficult to think that respondent No.1, a Company which was not in any way acquainted with the signature of the petitioner could forge the signature of the petitioner in the cheque and present for encashment. Obviously there was no CRL. R.P. No.1831 of 2009 -: 4 :- dissimilarity between the signature of the drawer in Ext.P1 and the specimen signature of the account holder. Otherwise the cheque which would be verified by the bank officials would have been dishonoured for that reason also which did not happen in this case. Learned magistrate has taken into account all the relevant aspects and found that version of the petitioner that the cheque he lost in the year 2001 came to the custody of respondent No.1 somehow, cannot be believed. That petitioner did not reply to the notice served on him lends further corroboration for the evidence of P.W.1. In the circumstances I do not find reason to interfere with the finding of the courts below that petitioner issued the cheque for a legally enforceable debt/liability. 6. So far as sentence is concerned, trial court sentenced the petitioner to undergo simple imprisonment for three months and directed him to pay compensation of Rs.50,000/- with default sentence for three months. Appellate court dismissed the appeal but modified the substantive sentence as simple imprisonment for one month and converted compensation into fine of Rs.50,000/- with default sentence for one month. It was directed that fine if realised will be paid to respondent No.1 as compensation under Sec.357(1) of the Code. 7. Learned counsel requested that substantive sentence may CRL. R.P. No.1831 of 2009 -: 5 :- be modified and petitioner be granted four months' time to deposit the fine. 8. Having regard to the nature of the offence and the amount involved, I am of the opinion that simple imprisonment till rising of the court is sufficient in the ends of justice. Considering the request made by the counsel and circumstances stated by him petitioner is granted three months' time to deposit the fine. Resultantly, revision is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted three months' time from this day to deposit the fine as ordered by the appellate court, in the trial court failing which he shall undergo simple imprisonment for one month. (iii) Fine if realised shall be paid to respondent No.1 as compensation under Sec.357(1) of the Code. Petitioner shall appear in the trial court on 14.9.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv