IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 CRL.REV.PET.NO. 2546 OF 2009() ------------------------------------------- CRA.44/2008 OF ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.41/2004 OF JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------------------------------- 1. M/S. MALAYALAM EDIBLE INDIA LTD., KEZHUVAMKULAM.P.O., PALA, KOTTAYAM-686584 REP. BY ITS MANAGING DIRECTOR MATHEWS MANUEL. 2. MATHEWS MANUEL MANAGING DIRECTOR, MALAYALAM SOLVENT EXTRACTION LTD., KEZHUVAMKULAM.P.O. PALA, KOTTAYAM-686584. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): COMPLAIANANT ------------------------------------------------ 1. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD., REGISTERED OFRFICE AT KESTON ROAD, KOWDIAR, TRIVANDRUM REP. BY ITS LEGAL ASSISTANT S. UMADEVI. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR PLEADER, HIGH COURT OF KERALA,ERNAKULAM BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2546 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of August, 2009 O R D E R -------------- Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to it. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track Court-I, Thiruvananthapuram in Crl. Appeal No.44 of 2008 confirming conviction and sentence of petitioners for offence punishable under Section 138 of the Negotiable instruments Act. Respondent No.1, a State owned company filed complaint against petitioners, a limited company and its Managing Director alleging that petitioner No.1 availed a loan of Rs.150 lakhs from it and for repayment of that amount issued the cheques. Those cheques were dishonoured for insufficiency of funds. In spite of statutory notice on petitioners they did not repay the amount. Hence respondent No.1 preferred complaints. Cases were jointly tried and disposed of by the learned magistrate as per a common order. Present revision relates to Ext.P2(b), cheque for Rs.1,60,000/-. Authorised representative of respondent No.1 gave evidence as P.W.1. Exhibit P1 is the resolution authorising him to give evidence. He referred to the transaction leading to execution of the cheque. According to CRL. R.P. No.2546 of 2009 -: 2 :- respondent No.1 at the time of availing of loan signed blank cheques were obtained. Courts below found in favour of due execution of the cheque. It is contended that due execution of the cheque is not proved. 3. That, petitioners have availed loan of Rs.150 lakhs from respondent No.1 is not disputed and proved by the evidence of P.W1. Contention of petitioners is only that cheques were given as security. Assuming so it was within the authority of respondent No.1 to fill up and present the cheque for the amount due. I stated that liability is not disputed. Courts below rightly found in favour of due execution of the cheque. I do not find reason to interfere with that finding. 4. Learned magistrate sentenced petitioner No.1 to pay fine of Rs.5,000/-. Petitioner No.2, Managing Director was directed to undergo simple imprisonment for three months. He was directed to pay compensation of Rs.1,60,000/- to respondent No.1 and in default to undergo simple imprisonment for one month. There was also a direction for payment of costs of Rs.1,000/- and in default to undergo simple imprisonment for ten days. Appellate court did not interfere with the substantive sentence, direction for payment of compensation, costs or the default sentences. It is contended that sentence imposed is excessive. 5. Learned counsel requested six months’ time to deposit the CRL. R.P. No.2546 of 2009 -: 3 :- compensation in the trail court. He submitted that in the connected case also petitioners have to deposit huge amount by way of compensation and stated about the difficulties experienced by the petitioners in raising the amount immediately. It is also submitted that petitioners may be permitted to pay the compensation directly to respondent No.1. Considering the circumstances stated by learned counsel and amount involved I am inclined to grant time till 5.1.2010. So far as substantive sentence awarded to petitioner No.2 is concerned, having regard to the nature of offence simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation, payment of costs or the default sentences as ordered by the trial court. There is also no reason to interfere with the sentence awarded to petitioner No.1. Resultantly, this revision petition is allowed in part to the following extent: (i) Substantive sentence awarded to petitioner No.2 is modified as simple imprisonment till rising of the court. (ii) Petitioner No.1 is granted time till 5.1.2010 to deposit the fine in the trial court. CRL. R.P. No.2546 of 2009 -: 4 :- (iii) Petitioners are granted time till 5.1.2010 to deposit the compensation and costs in the trail court as ordered by the learned magistrate. In case of failure petitioner No.2 has to undergo simple imprisonment as ordered by the learned magistrate. (iv) It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner Nos.1 and 2 paid the compensation to respondent No.1 through their counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of the compensation within the said period. In all other respects revision petition will stand dismissed. Petitioner No.2 shall appear in the trial court on 7.1.2010 to receive the sentence. Until then execution of warrant if any, against petitioner No.2 will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv