IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 Crl.Rev.Pet.No. 2697 of 2003(C) ------------------------------- CRA.782/2002 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM IN CC.513/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ M.K.ELIAS, MANAKKAT HOUSE, EDAKKATTUVAYAL P.O., ARAKUNNAM, ERNAKULAM DISTRICT. BY ADVS. SRI.P.P.JACOB SRI.P.GEORGE VARGHESE RESPONDENTS/RESPONDENTS/COMPLAINANT ; ------------------------------------------------------------------- 1. M/S.LAKSHMI AGENCIES, XXXIX/2495, J.J.CENTRE, POONITHURA, COCHIN-17. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.JOY THATTIL ITTOOP - R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO. 2697/2003 ORDER ON CRL.M.A.NO. 10762/2003 IN CRL. R.P.NO. 2697/2003 DISMISSED. SD/- THOMAS P. JOSEPH, JUDGE 19.09.2008 /TRUE COPY/ P.A. TO JUDGE. THOMAS P. JOSEPH, J. ------------------------------ CRL. R. P.No. 2697 of 2003 ------------------------------ Dated this the19th day of September, 2008 O R D E R Faced with concurrent finding entered by the courts below that the revision petitioner issued the cheque in question for the discharge of the debt due to the first respondent, conviction for the offence punishable under Section 138 of the Negotiable Instruments Act and sentence to undergo imprisonment and payment of compensation, the revision petitioner has come up in revision. 2. Heard counsel for the revision petitioner and the first respondent. Learned counsel for the first respondent made available for perusal the copy of the deposition of PW1 and DWs 1 to 3. 3. Learned counsel for the revision petitioner submitted that conviction of revision petitioner is neither legal nor proper, that learned Magistrate has not properly appreciated the contention of the revision petitioner and exhibits D1 and D2 proved by DWs 1 to 3 . It is also submitted that sentence awarded is excessive. 4. First respondent is a registered partnership firm engaged in CRP2697/03 2 the business of distribution of poultry feeds. The case is that the revision petitioner who is running poultry farm purchased feeds on credit for Rs.58,685.50/- and for the discharge of that liability, issued exhibit P3, cheque dated 12/04/1999. There is no dispute, and the evidence also shows that the cheque on presentation was returned for “insufficiency of funds”, that the revision petitioner was intimated about that and he was called upon to make the payment. The power of attorney holder of the first respondent gave evidence as PW1 and spoke to the alleged transaction. The version of the revision petitioner is that on account of the low quality of poultry feeds supplied by the first respondent, his pullets died in thousands and thereby he suffered damage. This was intimated to the manufacturer of the poultry feeds (Lipton Company), its representative (DW3) along with the representative of the first respondent (DW2) came to his poultry farm and took back the remaining portion of the feeds. The further contention is that Exhibit P1 was given as security at the time of purchasing the poultry feeds. 5. Though learned counsel for the revision petitioner submitted that learned Magistrate has not gone into the defence set up CRP2697/03 3 by the Revision petitioner which according to him is proved by Exhibits D1 and D2, I am not inclined to accept the contention. Exhibits D1 and D2, which are the certified copies of the depositions of the DW2 and DW3 in another case are of no use since it is seen from the testimony of DW2 and DW3 that apart from proving Exhibits D1, and D2, the relevant statement if any in Exhibits D1 and D2 which according to the revision petitioner would have proved his defence were not put to DWs 2 and 3. An admission made by a party to the proceedings need not be put to him as it is pro prio vigore evidence but that is not applicable to witnesses who are not parties to the proceedings {see Biswanath Prasad Vs.Dwaraka Prasad [AIR1974 SC 117]}. Hence Exhibits D1 and D2 are of no use. 6. So far as the defence version spoken by DW1, the revision petitioner is concerned, there is no acceptable evidence, even if it is assumed that the claim of damages set up can be looked into in a prosecution for the offence under Section 138, there is no evidence to show that the feed supplied by the first respondent was of low quality and consequently, the revision petitioner suffered damage. On the other hand, it is conceded that Exhibit P1 contains the signature of the CRP2697/03 4 revision petitioner. The plea that it was given as security is not established. There is evidence of PW1 which learned Magistrate accepted and the appellate court concurred. There is little reason to interfere. 7. So far as the sentence part is concerned, learned Magistrate imposed sentence of imprisonment for three months and directed the revision petitioner to pay compensation of Rs.60,000/-. The appellate court modified the substantive sentence to simple imprisonment for one month, but retained the direction for payment of compensation. Considering the nature of offence and the object of the legislation, I am satisfied that simple imprisonment till the rising of the court and compensation as awarded by the courts below is sufficient. Resultantly, the revision petition is allowed in part in the following lines; 1. the substantive sentence awarded to the revision petitioner is modified as simple imprisonment till the rising of the court. 2. the direction for payment of compensation issued by the trial court and confirmed by the appellate court will remain in force. The revision petitioner CRP2697/03 5 is granted two months time to deposit the compensation in the trial court. The revision petitioner shall surrender in the trial court on 20/11/2008 to receive the sentence. THOMAS P. JOSEPH, JUDGE scm