IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4629 of 2006() ----------------------------------------- CRA.555/2005 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.713/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- RAMACHANDRA PANICKER, SURAJ BHAVAN, EDAPPOAN MURI, NOORANAD VILLAGE, ALAPPUZHA DIST. BY ADV. SRI.C.B.SREEKUMAR RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CHENGANNUR ART LEASING LTD. CO., EXEUTIVE CHAIRMAN, RAVEENDRAN PILLAI, VELLIYARAYIL HOUSE, THENGOLI MURI, KUTTOOR VILLAGE. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R1 ADV. SRI.N.ASHOK KUMAR FOR R2 SMT.MARIAMMA KOSHY FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 4629 OF 2006 = = = = = = = = = = = = = = = Dated this the 26th day of November, 2008. O R D E R This revision is preferred against the judgment of the Additional Sessions Judge, Mavelilkkara in Crl.A.555/05. That appeal was preferred against the conviction and sentence passed in C.C.713/04 by the Judicial First Class Magistrate-I, Chengannur. The revision petitioner was convicted u/s 138 of the N.I. Act and sentenced to undergo simple imprisonment for a period of two months and to pay a compensation of Rs.47,000/- u/s 357 Cr.P.C. with default sentence. In appeal the appellate court reduced the sentence of imprisonment to 15 days and retained the payment of compensation and the default sentence. It is against that decision the present revision is preferred. 2. Heard the learned counsel for both sides. A perusal of the judgment of both the Courts below would reveal that the revision petitioner in this case had some hire purchase transaction with the complainant/company and Cr.R.P.4629 OF 2006 -:2:- towards the discharge of the liability had issued Ext.P1 cheque which when presented for encashment returned with endorsement insufficiency of funds. A statutory notice was sent and a case was filed. The case of the revision petitioner appears to be that he had only given three blank signed cheques which had been utilized for the purpose of instituting the case and further that the person who had filed the complaint has not been competent to represent and lastly the case has not been filed within the stipulated time. 3. In the lower Court PW1 was examined and Exts.P1 to P7 were marked. Both the Courts below on an analysis of the materials held that the complainant had succeeded in proving Ext.P1 cheque, its execution and that it was issued towards the discharge of the liability. There is no contra materials available as found by the Courts below to hold otherwise. When the execution is proved necessarily the presumption u/s 139 and 118 of the N.I. Act will apply which of course are rebuttable presumptions. There is no rebuttal evidence and therefore I do not find any ground to interfere with the decision rendered by the Courts below. Cr.R.P.4629 OF 2006 -:3:- 4. So far as the power to institute the proceedings, it has to be held that there has been Ext.P7 power of attorney authorizing the manager to represent the company in the legal proceedings. In the decision reported in M.M.T.C. Ltd. v. M/s Medchl Chemicals & Pharma (P) Ltd. (AIR 2002 SC 182) the Apex Court had held that cheque dishonour complaint can be made by payee or holder in due course of cheque. Complaint lodged in name and on behalf of appellant company who is payee of cheques is maintainable. 5. Here, the complaint is filed by the company and it can also be seen that the manager of the company is entitled to represent the company in the legal proceedings. Therefore in the light of these factors it has to be found that he is entitled to represent the company. 6. Lastly, it is on the question of limitation. It has been considered by the appellate court elaborately and the appellate court in paragraph 12 of its judgment found that the notice was issued on 6.7.04, it was served on the accused on 7.7.04, 15 days expired on 22.7.04 and the complaint is filed on 21.8.04. It is within the stipulated time Cr.R.P.4629 OF 2006 -:4:- and therefore it is not barred by limitation. From these discussions I hold that there is no perversity or illegality to be interfered with the conviction passed by the Courts below. 7. The next question is regarding the sentence. The trial court has imposed a sentence of imprisonment of two months and to pay a compensation of Rs.47,000/- with a default sentence and the appellate court has reduced it to 15 days imprisonment and retained the compensation portion. I feel, after hearing the learned counsel, that leniency can be shown with respect to the sentence portion and also by altering the whole sentence by imposing fine as well. Therefore the Criminal Revision is disposed of as follows: (1) The conviction u/s 138 of the N.I. Act is sustained. (2) The revision petitioner is directed to undergo simple imprisonment till the raising of the Court and to pay a fine of Rs.47,000/- which on realisation be paid to the complainant in the case. (3) In case of default of payment of fine the revision petitioner has to undergo imprisonment for a period of two months. Cr.R.P.4629 OF 2006 -:5:- (4) The revision petitioner shall appear before the trial court to receive the sentence on 16.2.2009 and also for payment of fine failing which the trial court is directed to execute the sentence. (5) If any amount has been deposited by way of compensation in this case it can be treated as fine and let it be disbursed to the complainant on proper application. The Crl.R.P. is disposed of as above. M.N. KRISHNAN, JUDGE. ul/-