IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 Crl.Rev.Pet.No. 668 of 1996(B) ------------------------------ CRA.17/1993 of ADDL.SESSIONS COURT, KOZHIKODE ST.3058/1990 of JUDL.MAGISTRATE OF FIRST CLASS-I, QUILANDY .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------ M.P.ABDUL RAHIMAN, S/O. MUHAMMED, MELAPOYIL HOUS, KAKKAD AMSOM, KARASSERRY DESOM, KARASSERRY. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS/RESPONDENT/COMPLAINANT AND STATE:- ------------- 1. M/S. UNIQUE P.V.C. PIPES, QUILANDY, REPRESENTED BY ITS MANAGING PARTNER, SAIYD THAHIR BAFAKHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.R.PARTHASARATHY FOR R1 PUBLIC PROSECUTOR SRI. K.C.SANTHOSH KUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.M.P. No.2273/1996 in Crl.R.P.No.668/1996 Dismissed. 7-3-2008 Sd/-K. Hema, Judge. mn. K. Hema, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 668 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2008 O R D E R This revision petition is filed against the conviction and sentence passed against the petitioner under section 138 of the Negotiable Instruments Act. 2. As per the allegation in the complaint, a partnership firm represented by its Managing Partner is the complainant. It is alleged that the petitioner/accused purchased PVC pipes from the 1st respondent/complainant on credit for Rs.40,000/- and in discharge of the said debt, he issued Ext.P1 series of cheques drawn on the Canara Bank, Mukkam Branch. It is also alleged that the cheques, on presentation, were dishonoured and returned with an endorsement “refer to drawer” due to insufficiency of funds in the account of the revision petitioner. It is further alleged that notice was sent to the petitioner, but no reply was sent and no amount was also paid. Hence, the complaint was filed. 3. To prove the prosecution case against the petitioner/accused, PWs.1 and 2 were examined and Exts.P1 to Crl.R.P.668/1996 -2- P9 were marked. On the side of the defence, DW1 was examined. The petitioner set up a case that of total denial. He has denied even the execution of Ext.P1 series of cheques. 4. The trial court after considering the evidence found that the prosecution case was acceptable and the contentions raised by the petitioner were repelled. Hence, the revision petitioner was found guilty under section 138 of the Negotiable Instruments Act and he was convicted thereunder and sentenced to under go simple imprisonment for six months and to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for two months more. In appeal the appellate court confirmed the conviction and modified the sentence to simple imprisonment for one month and fine of Rs.5,000/- and in default to undergo further simple imprisonment for one month. Aggrieved by the above, this revision is filed. 5. The learned counsel for the petitioner argued that the 1st respondent is not competent to file the complaint, as he is not the Managing Partner, as revealed from the evidence. Both the courts below have considered the question of maintainability and concluded that the complaint was maintainable. On going through the judgment, I do not find any reason to interfere with the Crl.R.P.668/1996 -3- concurrent findings entered into on this aspect. No impropriety or error could be pointed out, except making bare assertions. 6. The learned counsel for the petitioner however submitted that the sentence may be modified, as the petitioner is prepared to compensate the complainant to the tune of Rs.40,000/- which is the amount covered by Ext.P1 series of cheques involved in the case. The learned counsel for the 1st respondent/complainant conceded that civil case filed against the petitioner is dismissed and no appeal is filed. He also submitted that if the amount offered is paid, the 1st respondent will have no further grievance against the petitioner. 7. On hearing both sides, I find that there is no reason to interfere with the conviction but, in the interest of justice, the sentence imposed against the petitioner can be modified. Hence, the following sentence is passed:- 1) The petitioner shall undergo imprisonment till rising of the court and also pay Rs.40,000/- as compensation to the 1st respondent and in default of payment of such amount he shall undergo simple imprisonment for one month. Crl.R.P.668/1996 -4- 2) The petitioner shall appear before the trial court on 7-4-2008 or on such other subsequent date as may be fixed by the trial court, to serve the sentence and to pay the compensation. If he does not so appear, this revision will be treated as dismissed, and steps shall be taken for execution of the sentence. The revision is disposed of above. K. Hema, Judge. Crl.R.P.668/1996 -5- K. Hema,J. - - - - - - - - - - - - - - - - Crl.R.P..No.668/1996 - - - - - - - - - - - - - - - - Judgment 7-3-2008