IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 Crl.Rev.Pet.No. 349 of 2002() ----------------------------- C.C.78/2000 OF Judicial First Class Magistrate-III, ERNAKULAM CRA.316/01 OF VI ADDL.SESSIONS JUDGE, ERNAKULAM REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.A.PRABHAKARAN, PLAVIDA PARAMBIL, SREEMOOLANAGARAM, ALUVA. BY ADV. SRI.T.KURIAKOSE PETER RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. M/S. VISWAS CHITTS AND INVESTMENTS(P) LTD. CORPORATE OFFICE, XL/6589, 2ND FLOOR, EMIRATES, M.G.ROAD, ERNAKULAM REPRESENTED BY ITS POWER HOLDER CHACKO VARGHESE, GENERAL MANAGER. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADDL.R3 IMPLEADED AS PER ORDER DT.2/6/09 IN CRL.M.A.4896/02 ADDL.R3: THE OFFICIAL LIQUIDATOR, HIGH COURT OF KERALA COMPANY LAW BHAVAN, THRIKKAKARA, KOCHI-21. ADV. SRI.S.K.BRAHMANANDAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.349 OF 2002 --------------------------------------------- Dated 19th July, 2010 O R D E R Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act by Judicial First Class Magistrate-III, Ernakulam in C.C.78/2000 on a complaint filed by THE first respondent. Though petitioner challenged the conviction and sentence before Sessions court, Ernakulam, learned Sessions Judge on re-appreciation of evidence dismissed Crl.A.316/2001. Revision is filed challenging the conviction and sentence. Though revision petitioner contended in the revision petition that the courts below should not have accepted the interested version of PW1 and in the CRRP 349/02 2 absence of independent evidence, should not have been convicted the petitioner, learned counsel for the petitioner did not challenge the conviction. Learned counsel appearing for the petitioner submitted that as per the five receipts produced along with Crl.M.A.3421/2009, petitioner has already paid Rs.60,000/- to the first respondent and in such circumstances, there should be a direction to adjust that amount towards compensation. Out of Rs.60,000/- so claimed, Rs.10,000/- was deposited before the learned Magistrate as directed by this court to get the sentence suspended was not a payment to the first respondent. The case is that Rs.50,000/- was paid to first respondent on different dates, ranging from 5/10/2001 to 21/8/2003 and obtained the receipts. Petitioner was convicted by the learned CRRP 349/02 3 Magistrate on 5/5/2001 and all the alleged payments are subsequent to the date of the conviction. 2. It is admitted case that subsequent to the conviction, Official Liquidator was appointed in respect of first respondent company. In such circumstances, petitioner could not have paid any amount directly to the first respondent. Argument of the learned counsel is that petitioner was not aware of the appointment of the official liquidator. Ignorance of appointment is not a ground to justify the payment to a company, while the company is under liquidation and official liquidator is functioning. In such circumstances, payment even if made, cannot be allowed to be adjusted as sought for. More over, when there is a conviction and sentence against the petitioner, which includes CRRP 349/02 4 substantive sentence and payment of compensation, accused is not expected to pay portion of the compensation to complainant. In such circumstances, the payment sought to be adjusted cannot be upheld. But, if petitioner has made any payment to the first respondent, he is at liberty to realise the amount from the person who received it, in accordance with law. 3. Dishonoured cheque is for Rs.80,240/-. Learned Magistrate sentenced the petitioner to simple imprisonment for two months and compensation of Rs.82,000/-. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a compensation of Rs.82,000/- to be paid to the first respondent, but making it clear CRRP 349/02 5 that payment could only be to the official liquidator. Revision is allowed in part. Conviction of the petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified. In supersession of the sentence awarded by the learned Magistrate in C.C.78/2000, as confirmed by the Sessions Judge in Crl.A.316/2001, petitioner is sentenced to imprisonment till rising of court and compensation of Rs.82,000/- payable to the first respondent and in default simple imprisonment for two months. It is made clear that payment cannot be made directly to the first respondent and it could only be paid to the official Liquidator, so long as Official Liquidator is functioning. Petitioner is also granted liberty to realise the amount from CRRP 349/02 6 the person who received it, if any amount was paid to the first respondent subsequent to the conviction by the learned Magistrate. Petitioner is directed to appear before the Judicial First Class Magistrate on 1/9/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.