IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 604 of 2003() ----------------------------- CRA.269/2001 of ADDL.SESSIONS COURT, KOTTAYAM CC.968/1998 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... REVISION PETITIONER: APPELLANT/1ST ACCUSED: ------------------------------------------- THOMAS PARAPPALLY, FORMER MANAGING DIRECTOR, FRESH COCONUT PRODUCTS LTD., KADUPPASSERI P.O., THRISSUR DIST. BY ADV. SRI.M.C.GOPI RESPONDENT(S): RESPONDENTS IN THE CRL.APPEAL/COMPLAINANT AND STATE: ------------------------------------------------------- 1. M/S. JELITTA, P.B.NO. 8, BAKER JUNCTION, KOTTAYAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, MOHAN DAS G. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.MATHEWS J.NEDUMPARA FOR R1 SRI.SANJAYAN.K.R. FOR R1 SRI.SREEVALSAN.V FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR-R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. NO.2168 OF 2003 IN CRL.R.P.NO.604 OF 2003 DISMISSED 15.12.2009 Sd/- (C.T.RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL. R.P. NO. 604 OF 2003 -------------------------------------------- Dated this the 15th day of December, 2009 O R D E R The revision petitioner was the first accused in C.C.No.968/98 on the file of Court of the Judicial First Class Magistrate-III, Kottayam and was the appellant in Crl.Appeal No.269 of 2001 on the file of the Court of Additional Sessions Judge, Kottayam. The learned Magistrate convicted the petitioner under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and the conviction and sentence were conformed in the aforesaid Cr.Appeal by the learned Sessions Judge. The case against the second accused in C.C.No.968 of 1998 was split up and refiled. 2. The case of the complainant was that he was doing business in advertising and in the transaction between himself and the petitioner, the petitioner became his debtor. In discharge of the said liability incurred, the petitioner/1st accused has issued a cheque in his favour for Rs.25489.75 drawn on Federal Bank Ltd, Thrissur Main Branch. The said cheque was dishonoured when presented for collection on the ground of insufficiency of Crl.R.P. NO.604 of 2003 2 funds. Thereafter, the complainant had issued statutory notice within the statutorily prescribed period to the petitioner. However, the petitioner had failed to repay the amount even within the statutorily permitted period. Thereupon, the petitioner had preferred complaint against the petitioner and that culminated in petitioner's conviction and sentence as mentioned above. 3. The Trial Court appreciated the evidence and found the petitioner guilty under Section 138 of the Negotiable Instruments Act and thereupon convicted him thereunder and sentenced him as aforesaid. He had unsuccessfully filed an appeal against the judgment in C.C.No.968 of 1998. Therefore, the point for consideration in this case is whether the conviction of the petitioner/1st accused under Section 138 of the Negotiable Instruments Act by the Trial Court in C.C.No.968 of 1998 which was conformed in Crl.Appeal No.269 of 2001 can be sustained. Whether the sentence imposed on him is excessive or unduly harsh is also a point for consideration. 4. The complainant was examined as PW1 and on his side Exts.P1 to P7 were marked. No witnesses were examined on behalf of the petitioner and no documents were marked on his side. A scanning of the evidence oral Crl.R.P. NO.604 of 2003 3 and documentary, would reveal that nothing was brought out to discredit the verity of the evidence of PW1. The oral evidence adduced by PW1 is supported by Exts.P1 to P7. In fact to defend his case, the petitioner/1st accused took up the contention that he was the managing Director of Fresh Coconut Products Ltd., Kaduppassery, Thrissur District and in his capacity as the Managing Director of such company, he had signed in certain blank cheques and kept them in the company. When the new Managing Director had assumed charge, the said cheques were misused and that ultimately led to the filing of the complaint against him. After appreciating the evidence, both the Trial Court and the Appellate Court had rejected the said contention of the petitioner. The petitioner was unable to adduce any evidence to substantiate the said contention. In such circumstances, it cannot be said that the Trial Court erred in believing evidence of PW1 regarding the transaction and convicted and sentenced the petitioner. In the absence of any evidence on the part of the petitioner/accused and at the same time in view of the oral and documentary evidence adduced by the complainant, his version that the cheque in question was issued to him in discharge of the liability cannot be disbelieved. It is in evidence that the said cheque on its presentation was dishonoured and the complainant had compiled with all statutory formalities before filing a complaint against the petitioner. The petitioner did not have a Crl.R.P. NO.604 of 2003 4 case that he had repaid the amount. The long and short of the discussions is that the conviction of the revision petitioner under Section 138 of the N.I Act is only to be confirmed. Therefore, I confirm the conviction of the revision petitioner under Section 138 of the N.I Act. 5. The next point that arises for consideration is whether the sentence imposed on him is excessive or unduly harsh. The petitioner is a senile sexagenarian and therefore the sentence of imprisonment may be avoided, it is submitted. The transaction was of the year 1998. Taking into account of the said circumstances, I am of the view that a sentence till the rising of the court and a fine of Rs.25490/- would meet the ends of justice. It is submitted by the counsel for the petitioner that while admitting this case there was a direction to pay 50% of the said amount and in compliance with that he had remitted an amount of Rs.12745/- on 23.4.2003. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of the N.I.Act is confirmed. He is sentenced to undergo imprisonment till the rising of the court and to pay an amount of Rs.25490/-, in default, to undergo simple imprisonment for three months. The revision petitioner has already remitted an amount of Rs.12745/- Crl.R.P. NO.604 of 2003 5 on 23.4.2003 and the same shall be adjusted against the fine amount. The balance amount shall be paid by the revision petitioner within two months from today. If the balance amount is remitted as ordered above, the entire fine amount shall be paid to the complainant as compensation under Section 357 (1) of the Cr.P.C. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 31.1.2010 to receive the sentence. It is made clear that if the amount of fine is remitted by the petitioner in terms of the direction above, the 1st respondent/complainant is entitled to withdraw that amount. The review petition is allowed to be above extent. (C.T. RAVIKUMAR, JUDGE) spc Crl.R.P. NO.604 of 2003 6 C.T. RAVIKUMAR, J. CRL. R.P. NO. 604/2003 O R D E R 15th December, 2009 Crl.R.P. NO.604 of 2003 7