IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 Crl.Rev.Pet.No. 4206 of 2008() ------------------------------ CRA.776/2007 of ADDL.SESSIONS COURT (ADHOC-III), N.PARAVUR CC.621/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): PETITIONERS/APPELLANTS/ACCUSED 1 AND 2 ----------------------------------------------------------------------------- 1. SREE MOOKAMBIKA FLOUR MILLS, APASARA JUNCTION, AYYATHIL, KOLLAM-4, REPRESENTED BY ITS MANAGING PARTNER G.VIVEKANANDAN. 2. G.VIVEKANANDAN, AGED 58 YEARS, S/O.S.A.GIRI, MANAGING PARTNER, SREE MOOKAMBIKA FLOUR MILLS, APASARA JUNCTION, AYYATHIL, KOLLAM-4. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.B.RASHEED MATHER, KAKKANATTIL HOUSE, DESOM.P.O., ALUVA, ERNAKULAM DIST. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 1 /1 /2009 THE COURT ON 01/01/2009 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 4206 OF 2008 =========================== Dated this the 1st day of January,2009 ORDER Revision petitioners are accused 1 and 2 in C.C.621/2003 on the file of Judicial First Class Magistrate-I, Aluva. Second respondent is the complainant. Second respondent lodged the complaint against the first revision petitioner, the firm and the second revision petitioner its Managing Partner and two other partners of the firm alleging that they committed the offence under section 138 of Negotiable Instruments Act. Accused pleaded not guilty. Learned Magistrate on the evidence of PW1 and Exts.P1 to P7 DW1 and Exts.D1 and D2 found accused 3 and 4 not guilty and acquitted them. Revision petitioners were convicted for the offence under section 138 of Negotiable Instruments Act. They were sentenced to simple imprisonment for one year, without taking note of the fact that first revision petitioner is CRRP4206/2008 2 only a firm. Petitioners challenged the conviction and sentence before Additional Sessions Court, North Paravur in Crl.A.776/2007. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction. But sentence was modified to a fine of Rs.1,25,000/- as against the first revision petitioner firm and simple imprisonment for three months and a fine of Rs.10,000/- and in default simple imprisonment for two months as against second revision petitioner with a direction to pay Rs.1,25,000/- on realisation to second respondent as compensation. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioners was heard. 3. Learned counsel, in view of the evidence on record and the concurrent findings of fact did not challenge the conviction but sought modification of the sentence. It was submitted that considering the fine awarded as against firm the substantive CRRP4206/2008 3 sentence as against second revision petitioner may be reduced as well as the fine. 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that in discharge of the liability of first revision petitioner firm, second revision petitioner being the Managing Partner issued the cheque which was dishonoured for want of sufficient funds and second respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of revision petitioners in such circumstance, for the offence under section 138 of Negotiable Instruments Act, is perfectly legal. 5. Then the only question is regarding the sentence. Learned Additional Sessions Judge modified the sentence to a fine for the amount covered by the dishonoured cheque as against the firm and simple imprisonment for three months in addition to a fine of Rs.10,000/- as against the CRRP4206/2008 4 Managing Partner the second revision petitioner. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified, reducing the substantive sentence to imprisonment till rising of court. So long as the sentence is not varied or modified against the interest of second respondent, it is not necessary to issue notice to second respondent. As per the modified sentence awarded by Sessions Judge second respondent is to get a compensation of Rs.1,25,000/- which was the amount covered by the dishonoured cheque. In such circumstance, the sentence is modified as follows:- First revision petitioner is sentenced to a fine of Rs.10,000/-. Second revision petitioner is sentenced to imprisonment till rising of court in addition to a fine of Rs.1,20,000/- and in default simple imprisonment for one month. On realisation of fine Rs.1,25,000/- to be paid to second respondent as compensation under section 357(1) of the Code of Criminal Procedure. CRRP4206/2008 5 Revision is allowed in part. Conviction of revision petitioners for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. First revision petitioner/first accused is sentenced to a fine of Rs.10,000/-. Second revision petitioner/second accused is sentenced to imprisonment till rising of court and a fine of Rs.1,20,000/- and in default simple imprisonment for one month. On realisation of fine, Rs.1,25,000/- to be paid to second respondent as compensation under section 357(1) of Code of Criminal Procedure. Revision petitioner is granted four months time to pay the fine. Second revision petitioner is directed to appear before the Magistrate on 2.5.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006