IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Crl.Rev.Pet.No. 3295 of 2008(B) -------------------------------------------- CRL.A.553/2007 OF THE ADDL. DISTRICT AND SESSIONS COURT FAST TRACK (ADHOC -II) KOZHIKODE. ST.1153/2006 OF THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE, (MARAD) CASES, KOZHIKODE. .................... PETITIONERS/ APPELLANTS/ ACCUSED: ---------------------------------------------------------- 1. TRITAN ADVERTISING COMPANY, REP. BY ITS MANAGING PARTNER RIYAS.V.K., S/O.ABOOBACKER, AGED 32 YEARS, C/O.MALABAR AGENCIES, NEAR NEW BUS STAND, VATAKARA, KOZHIKODE DISTRICT. 2. RIYAS V.K., S/O.ABOOBACKER, AGED 32 YEARS, MFWAS HOUSE, CUSTOMS ROAD, POYATAKARA BEACH, VATAKARA AMSOM, DESOM, VATAKARA, KOZHIKODE. BY ADV. SRI.PULIKKOOL ABUBACKER, ADV. SRI.ZUBAIR PULIKKOOL. RESPONDENTS/ RESPONDENTS/ COMPLAINANT: ----------------------------------------------------------------------- 1. MIX ADVERTISING, REP. BY ITS PROPRIETOR, SAKIR HUSSAIN.K.V., AGED 33 YEARS, S/O.ABOOBACKER KUNHI, KADEEJA MAHAL, KALLAI ROAD, CHALAPURAM, KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/11/2008,ALONG WITH CRL.R.P NO. 3300/ 2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3295 & 3300 OF 2008 =========================== Dated this the 14th day of November,2008 ORDER Revision petitioners are the accused and first respondent the complainant in S.T.1104/2006 and 1153/2006 on the file of Judicial First Class Magistrate (Marad Cases), Kozhikode. First petitioner is a partnership firm and second petitioner its partner. First respondent filed the complaints contending that petitioners borrowed Rs.1,00,000/- and agreed to repay the same within two months and when demanded they issued two post dated cheques for Rs.50,000/- dated 12.12.2005 and 3.3.2006 drawn in the account maintained in Vatakara Branch of Vijaya Bank. When the cheque was presented for encashment, they were dishonoured for want of sufficient funds. Inspite of Ext.P5 notice demanding the amount covered by the dishonoured cheques, petitioners did not pay the amount and thereby petitioners committed the CRRP3295/2008 & 3300/2008 2 offence under section 138 of Negotiable Instruments Act. S.T.1104/2006 is filed in respect of Ext.P1 cheque and S.T.1153/2006 in respect of Ext.P2 cheque. Petitioners pleaded not guilty. Both the cases were tried jointly. First respondent was examined as PW1 and Exts.P1 to P10 were marked. Second revision petitioner was examined as DW1 and Ext.D1 was marked on their side. Learned Magistrate on the evidence found the petitioners guilty. They were convicted for the offence under section 138 of Negotiable Instruments Act.In S.T.1104/2006 first petitioner was sentenced to a fine of Rs.3000/- and second petitioner to simple imprisonment for one month and a compensation of Rs.50,000/- and in default simple imprisonment for one month. In S.T.1153/2006, first petitioner was sentenced to a fine of Rs.3000/- and second petitioner to simple imprisonment for one month and a compensation of Rs.50,000/- and in default simple imprisonment for one month. Petitioners challenged the conviction and sentence before Additional CRRP3295/2008 & 3300/2008 3 Sessions Court, Kozhikode in Crl.A.552/2007 & Crl.A.553/2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeals. Revisions are filed challenging the conviction and sentence. Crl.R.P. 3300/2008 is filed challenging the conviction in S.T.1104/2006 as confirmed in Crl.A.552/2007. Crl.R.P.3295/2008 is filed challenging the conviction in S.T.1153/2006 as confirmed in Crl.A.553/2007. 2. Learned counsel appearing for petitioners were heard. 3. The argument of the learned counsel is that there is no evidence to prove that PW1 is the proprietor of first respondent Company and therefore courts below should have dismissed the complaints. It was also argued that courts below did not properly appreciate the evidence and on the evidence it should have been found that Exts.P1 and P2 cheques were not issued towards repayment of any legally recoverable debt as canvassed by first CRRP3295/2008 & 3300/2008 4 respondent and the conviction is not sustainable. 4. On hearing the learned counsel and going through the judgments of the courts below, I do not find any reason to interfere with the conviction. Though petitioners contended that Exts.P1 and P2 cheques were not issued towards repayment of the amount borrowed, evidence of PW1 establish that Exts.P1 and P2 cheques were issued towards repayment of Rs.1,00,000/- borrowed by second petitioner for and on behalf of first petitioner. Evidence also establish that PW1 is the proprietor of the first respondent, proprietory concern and Exts.P1 and P2 cheques when presented were dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioners in both the cases is perfectly legal. 5. Then the only question is regarding the sentence. The cheques in both cases is for Rs.50,000/- each. So long as the sentence is not CRRP3295/2008 & 3300/2008 5 varied or modified against the interest of the first respondent, it is not necessary to issue notice to first respondent. Considering the nature of the offence, interest of justice will be met, if the sentence as against the second petitioner is modified to imprisonment till rising of the court and converting the compensation awarded by the learned Magistrate to a fine with a default sentence of simple imprisonment for one month and the direction to pay Rs.50,000/- each as compensation to first respondent. Revisions are allowed in part. Conviction of the petitioners for the offence under section 138 of Negotiable Instruments Act is confirmed and sentence is modified. In S.T.1104/2006 sentence awarded to the first petitioner is confirmed. Sentence as against second petitioner is modified to imprisonment till rising of court and a fine of Rs.50,000/- and in default simple imprisonment for one month. On realisation of the fine, Rs.50,000/- to be paid to first respondent as compensation CRRP3295/2008 & 3300/2008 6 under section 357(1) of the Code of Criminal Procedure. In S.T.1153/2006 conviction for the offence under section 138 of Negotiable Instruments Act is confirmed. The sentence as against first petitioner is also confirmed. The sentence as against the second petitioner is modified to imprisonment till rising of court and a fine of Rs.50,000/- and in default simple imprisonment for one month. On realisation of the fine, Rs.50,000/- to be paid to first respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioners are granted two months time to pay the fine as directed. If the petitioners had deposited any amount before the learned Magistrate in these cases, they need deposit only the balance of the fine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006