IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.Rev.Pet.No. 3110 of 2004() ------------------------------------------- CRA.173/2003 of IIIRD ADDL. SESSIONS COURT (ADHOC), THRISSUR ST.2980/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED: ---------------------------------------------------------------------- 1. MANAGING PARTNER, REP. FOR DHANALUXMI FINANCE CORPORATION, NATTIKA. 2. A.V.SISUPALAN, S/O.VELAYUDHAN, ARUKETTY HOUSE, NATTIKA, MANAGING PARTNER, DHANALUXMI FINANCE CORPORATION, NATTIKA. BY ADVS. SRI.M.NARENDRA KUMAR SMT.LEENA KRISHNAN RESPONDENT(S): COMPLAINANT: ------------------------------------------------- 1. MEERA GOPALAN, W./O.GOPALAN, NAMNIPIRICHI, NATTIKA, D/O.BALAKRISHNAN, KATHAVALAPPIL. 2. STATE OF KERALA. R1 BY ADV. SRI.RAJIT R2 BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.Q.BARKATH ALI J. ------------------------- Crl.R.P. No. 3110 of 2004 ------------------------------------- Dated this the 22nd day of October, 2010. ORDER Revision petitioners 1 and 2 are the accused persons in ST Case No.2980/1999 on the file of the Judicial First Class Magistrate Court, Kodungallur and appellants in Crl.Appeal No.173/2003 the court of the Addl. Sessions(Adhoc) Judge, Fast Track Court No.I, Thrissur. 2. The first revision petitioner is the Dhanaluxmi Finance Corporation, Nattika and the second revision petitioner is the Managing partner. They were convicted under Section 138 of the Negotiable Instruments Act and second accused was sentenced to undergo simple imprisonment for three months and they were directed to pay a compensation of Rs.75,000/- to the complainant in default, the second accused was ordered to undergo simple imprisonment for three months by the learned Magistrate by judgment dated February 19, 2003. On appeal by the revision petitioners/accused persons, the lower appellate court by judgment dated August 6, 2004 confirmed their conviction, but modified their sentence to the effect that the second accused was Crl.R.P. No. 3110 of 2004 2 sentenced to undergo imprisonment till the rising of the court. The order to pay the compensation was maintained and the default sentence was reduced to simple imprisonment for two months. The revision petitioners/accused persons have now come up in revision challenging their conviction and sentence. 3. The case of the revision, first respondent/complainant as testified by her as PW1 before the trial court and as detailed in the complaint in brief is thus: The second accused as the managing partner of the first accused Corporation, issued the cheque Ext.P1 dated January 30, 1999 for Rs.68,000/- in favour of the complainant for the amount due to the complainant from the accused persons. The complainant presented the said cheque for collection, which was returned dishonoured for want of sufficiency of funds in the account maintained by the accused persons. In spite of the notice, Ext.P3 dated February 2, 1999, the accused persons evaded the receipt of the notice and did not re-pay the amount. Therefore, the complainant filed the complaint before the trial Court under Section 138 of the Negotiable Instruments Act. Crl.R.P. No. 3110 of 2004 3 4. On receipt of the complaint, the learned Magistrate had recorded the sworn statement of the complainant and took cognizance of the offence. The second accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of the Negotiable Instruments Act on behalf of himself and on behalf of the first accused. The complainant was examined as PW1 and Exts.P1 to P9 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the second accused denied the entire transaction. DW1 was examined and Exts. D1 and D2 were marked on the side of the accused. 5. The learned Magistrate on an appreciation of the evidence found that the accused persons have committed the offence punishable under Section 138 of the Negotiable Instruments Act, convicted them thereunder and sentenced them as aforesaid. The lower appellate court confirmed their conviction, but modified the sentence as mentioned above. The accused persons have come up in revision challenging their Crl.R.P. No. 3110 of 2004 4 conviction and sentence. 6. Heard the counsel for the revision petitioners/accused and the counsel for the revision first respondent/complainant. 7. The following points arise for consideration: 1. Whether the conviction of the revision petitioners under Section 138 of the Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ? 2. Whether the sentence imposed is excessive or unduly harsh ? Point No.1:- 8. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out in his cross-examination to discredit his evidence. Further his evidence is supported to Exts. P1 to P9. 9. The specific case of the accused when questioned under Section 313 of the Cr.P.C. by the learned Magistrate was that when first accused's firm was collapsed, the cheques were taken by some persons and the complainant misusing one of the cheques has created by Ext.P2. No satisfactory evidence was Crl.R.P. No. 3110 of 2004 5 adduced by the accused persons to prove their case. The evidence of DW1, the manager of the bank also does not help the accused persons to prove the above case of the accused. Therefore, I am of the view that the learned magistrate as well as the learned Sessions Judge is perfectly justified in accepting the evidence of the complainant and finding that the accused persons have committed the offence punishable under Section 138 of the Negotiable Instruments Act and convicting them thereunder. Therefore, I confirm the conviction of the accused persons under Section 138 of the Negotiable Instruments Act. Point No.2: 10. As regards the sentence, the learned Magistrate sentenced the second accused to undergo simple imprisonment for three months and to pay a compensation of Rs.75,000/- to the complainant and in default to undergo simple imprisonment for three months. The appellate court while maintaining the order of payment of compensation, reduced the substantial sentence to till the rising of the court and fixed the default sentence as simple imprisonment for two months, I find no special reason to reduce Crl.R.P. No. 3110 of 2004 6 the sentence. In the result, revision petition is dismissed. The conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act and the sentence imposed by the learned Magistrate as modified by the lower appellate court are confirmed. The direction to pay compensation is also sustained. Two months' time is granted to the revision petitioner to pay the compensation. The second revision petitioner shall surrender before the learned Magistrate on or before November, 15, 2010 to suffer the sentence. Bail bonds of the accused persons are cancelled. P.Q.BARKATH ALI, JUDGE ln