IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 Crl.Rev.Pet.No. 583 of 2002(B) ------------------------------ CRA.505/1998 of II ADDL.SESSIONS COURT, ERNAKULAM CC.198/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- WILLIAM D'SOUZA, PROPRIETOR,VINAYAK ASSOCIATES (VINAYAK MARINE PRODUCTS) AMYLYA AUTO ZEROX,WALKE COMPOUND,MASTIKATTLE ROAD,HONAVAR, KARNATAKA-34. BY ADV. MR.N.K.MOHANLAL RESPONDENT(S): RESPONDENTS/COMPLAINANT NO.1: ----------------------------------------------------------------------------------- 1. JACOB MATHEW, ASST.MANAGER, ABD ENTERPRISES,ABAD BUILDERS, NEW TOWN ROAD, KOCHI-2. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADVS. MR.BENNY JOSEPH, SMT.BINI P.C. R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.3715/2002 IN CRRP.NO.583/2002 DISMISSED 24/03/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.583 OF 2002 () ----------------------------------- Dated this the 24th day of March, 2009 O R D E R The revision is filed by the accused against the concurrent verdict of guilty rendered against him for the offences punishable under Section 138 of the Negotiable Instruments Act, in short the 'N.I.Act'. The learned Magistrate after trial, negativing his plea of not guilty, convicted him of the offence and sentenced him to undergo rigorous imprisonment for three months and to pay a fine of Rs.4 lakhs with default term to undergo simple imprisonment for three months. In appeal, the Sessions Judge confirmed the conviction, but modified the sentence relating to fine. Fine was converted as compensation to the complainant, and the substantive term of imprisonment of three months was retained. Questioning the legality, propriety and correctness of the conviction and sentence, as indicated above, he has preferred this revision. CRL.R.P.583/02 2 2. The accused, towards discharge of a liability arising in a business transaction, issued Ext.P3 cheque for a sum of Rs.4 lakhs, promising its encashment on presentation in due course, is the case of the complainant. The cheque presented was, however, dishonoured with endorsement 'payment stopped by the drawer'. Notice was issued to the accused, but, no payment was made after acknowledging the notice. In the above circumstances, prosecution was launched against the accused by filing a complaint indicting him of the offence punishable under Section 138 of the N.I.Act. The accused pleaded not guilty to the offence. Complainant examined PWs.1 and 2 and got marked Exts.P1 to P12 to prove his case. The accused contended that the cheque had been issued in blank form with signature alone as security. He also questioned the competency of PW1, the Power of Attorney holder of the complainant, who signed the complaint. The learned Magistrate, after appreciating the materials tendered in the case, found the accused guilty of the offence imputed, and he was thereupon convicted and sentenced as already indicated. The Sessions Judge, in appeal, after reappreciating the evidence, had confirmed the conviction, with slight CRL.R.P.583/02 3 modification of sentence. 3. I have perused the records of the case. The challenge raised against the prosecution, before the lower courts, questioning the competency of the complainant, but found against, is once again reiterated before me. Since the complainant is a trust, unless there is authority authorising the Power of Attorney holder, that is, PW1 to prosecute the complaint, he is not competent to do so is the main challenge advanced to assail the prosecution of the accused. It is seen, both the courts below have repelled the contention raised on the ground holding that, PW1, the Power of Attorney was competent to prosecute the complaint on behalf of the trust. I do not find any impropriety in that finding arrived by the courts below. Similarly, there is also no merit in the challenge taken by the accused that the execution of the cheque having been disputed a duty was cast upon the complainant to prove due execution of the cheque. Other than raising a bald contention that the cheque was issued in blank form with signature alone the accused has not marshalled any circumstance in support of that defence. The proved facts of the case would show that the cheque was dishonoured in view CRL.R.P.583/02 4 of a 'stop payment order' given to the bank by the account holder/accused. At the relevant time, when the cheque was dishonoured, it has come out in evidence that he had no sufficient funds and, under the circumstances the burden was on the accused to show that the cheque had been given in blank form with signature alone. The defence so canvassed by the accused remained unsubstantiated and it was rightly repelled by both the courts. Conviction of the accused on the materials produced in the case is unassailable, and there is no merit in the revision. However, as regards the sentence imposed, though the fine imposed by the Magistrate had been modified as compensation by the appellate court, it is seen, the substantive term of imprisonment imposed has been retained. Further no time limit has been fixed for payment of compensation. Driving the complainant to realise the compensation, by recourse to Section 421 of the Cr.P.C., as if it were a fine, would normally takes its own time, and if possible, that has to be avoided. Similarly, having regard to the nature of the offence involved, I am of the view that incarceration of the accused in prison for a term as CRL.R.P.583/02 5 substantive punishment is, not warranted to meet the ends of justice. So much so, the sentence imposed against the accused is modified ordering him to undergo imprisonment till the rising of the court, and to pay the compensation of Rs.4 lakhs under Section 357 (3) of the Cr.P.C., as directed by the appellate court, within a period of three months from the date of this order. Compensation, if realised, shall be paid to the complainant. In default of payment of compensation, the accused shall undergo simple imprisonment for a period of four months. The accused shall appear and his sureties shall produce him on 1st July, 2009, before the Judicial First Class Magistrate II, Kochi, and the learned Magistrate shall execute the sentence as directed. Revision is partly allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.583 OF 2002 (B) --------------------------------------------------------- O R D E R --------------------------------------------------------- 24th March, 2009