IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.Rev.Pet.No. 3766 of 2008() ------------------------------ CRA.42/2007 of ADDL.SESSIONS JUDGE (ADHOC-II)ERNAKULAM CC.24/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- 1. C.F.JOHNSON, S/O.FRANCIS, MANAGING DIRECTOR M/S.VISHWAS CHITS AND INVESTMENTS PVT. LTD REG.OFFICE CC 40/5589, EMIRATES, M.G. ROAD, ERNAKULAM, KOCHI.682 035. 2. P.A.JALEEL, S/O.ABOO, EXECUTIVE DIRECTOR, M/S.VISHWAS CHITS AND INVESTMENTS PVT. LTD REG.OFFICE CC 40/35 EMIRATES, M.G. ROAD ERNAKULAM, KOCHI.682 035. RESIDING AT SEBASTIAN THALIYATH ROAD, PANDIKUDY KOCHI-2. BY ADV. SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. A SURENDRAN, CC.12/801, JAWAHAR ROAD, KOCHI-2. BY PUBLIC PROSECUTOR SRI.C.M. KAMAPPU FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/11/2008 ALONG WITH CRL.R.P.3768/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3766 &3768 OF 2008 =========================== Dated this the 21st day of November,2008 ORDER Revision petitioners are accused 2 and 3 in C.C.24/2003 and 190/2003 on the file of Judicial First Class Magistrate-II, Kochi. Second respondent is the complainant. Petitioners are the Managing Director and Executive Director of first accused Vishwas Chits and Investments Pvt. Ltd. C.C.24/2003 was taken cognizance on the complaint filed by second respondent alleging that Ext.P1 cheque for Rs.37,500/- was issued by the petitioners for the first accused, in their account maintained in Ernakulam Branch of Lord Krishna Bank towards the discharge of liability and it was dishonoured under Ext.P2 and Ext.P3 notice sent demanding the amount covered by Ext.P1 was not received by the petitioners inspite of the intimation and Ext.P6 the original notice was returned unclaimed and petitioners failed to pay CRRP3766/08 & 3768/08 2 the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. C.C.190/2003 was taken cognizance on the complaint filed by the second respondent contending that towards the discharge of liability for Rs.2,50,000/- Ext.P7 cheque drawn in their account maintained in Ernakulam Branch of Lord Krishna Bank was issued and when it was presented for encashment under Ext.P8 it was dishonoured for want of sufficient funds and Ext.P9 notice (Ext.P12 the original notice) was returned unclaimed and they failed to pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioners pleaded not guilty in both the cases. Learned Magistrate tried both the cases jointly. On the evidence of PW1 and Exts.P1 to P12 the accused were found guilty. Petitioners were convicted and sentenced to simple imprisonment for one month each in each case and a fine of Rs.75,000/- in C.C.24/2003 and a fine of Rs.5,00,000/- in C.C.190/2003 with a direction to CRRP3766/08 & 3768/08 3 pay the fine, on realisation, to second respondent. Petitioners challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.42/2007 and 43/2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction in both the cases but modified the sentence. The sentence in C.C.24/2003 was modified to simple imprisonment for one month each and a fine of Rs.45,000/- each and in default simple imprisonment for one month. On realisation Rs.90,000/- was directed to be paid to second respondent as compensation under section 357(1) of Code of Criminal Procedure. The sentence in C.C.190/2003 was modified and petitioners were sentenced to simple imprisonment for one month each and a fine of Rs.1,50,000/- each and in default simple imprisonment for two months each. On realisation of fine Rs.3,00,000/- was directed to be paid to second respondent as compensation under section 357 (1) of the Code of Criminal Procedure. Revisions are filed challenging the conviction and sentence. CRRP3766/08 & 3768/08 4 2. Learned counsel appearing for the petitioners were heard. 3. Learned counsel did not challenge the conviction and submitted that petitioners are not challenging the conviction and the sentence may be modified and petitioners may be granted six months time to pay the fine. 4. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. Evidence establish that Ext.P1 cheque for Rs.37,500/- and Ext.P7 cheque for Rs.2,50,000/- were respectively issued by both the petitioners to discharge the liability, to second respondent. Exts.P1 and P7 cheques were dishonoured for want of sufficient funds. It is also proved that second respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Therefore conviction of the petitioners for the offence under section 138 of Negotiable Instruments Act is perfectly legal and warrants no interference. CRRP3766/08 & 3768/08 5 5. Then the only question is regarding the sentence. So long as the sentence is not varied or modified against the second respondent, it is not necessary to issue notice to second respondent. 6. Learned counsel appearing for petitioners submitted that the liability of petitioners was that of the first accused Company which is now under liquidation and first petitioner is the Managing Director and second petitioner Executive Director and they may be granted six months time to pay the fine as directed by the learned Sessions Judge. It was also submitted that in view of the facts and circumstances of the case, substantive sentence may also be modified. Considering the entire facts and circumstances of the case, interest of justice , will be met if the substantive sentence awarded by the learned Sessions Judge is reduced to imprisonment till rising of the court while maintaining the fine as well as the direction to pay compensation on realisation of fine under section 357(1) of Code CRRP3766/08 & 3768/08 6 of Criminal Procedure. Revisions are allowed in part. Conviction of the petitioners in C.C.24/2003 and C.C.190/2003 for the offence under section 138 of Negotiable Instruments Act is confirmed. The sentence awarded by the learned Sessions Judge in Crl.A.42/2007 and 43/2007 respectively are modified with regard to the substantive sentence alone while confirming the fine. In both the cases petitioners are sentenced to imprisonment till rising of the court in addition to the fine already awarded by the learned Sessions Judge. Petitioners are granted six months time to pay the fine in both the cases. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006