IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Crl.Rev.Pet.No. 125 of 2001 -------------------------------------- CRL.A.NO.128/1997 OF SESSIONS COURT, MANJERI, ST.NO.1266/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, PERINTHALMANNA. .................... REVISION PETITIONER/ ACUSED/ APPELLANT: ------------------------------------------------------------------- SYRIAC SEBASTIAN, S/O. DEVASIA, KULLUKALAYIL HOUSE, AMMINIKKAD. BY ADV. MR.K.M.SATHYANATHA MENON. RESPONDENTS/ COMPLAINANT/ RESPONDENT: --------------------------------------------------------------------- 1. K.T. KUNHI MOHAMMED, S/O. MAYAN, MANAGING PARTNER, M/S. ROYAL FEED DISTRIBUTORS, OOTTY ROAD, PERINTHALMANNA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.M.RAMESH CHANDER, MR.M.VIJAYAKUMAR, R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 125/2001: O R D E R Counsel for the revision petitioner absent. Criminal Revision Petition is dismissed for non-prosecution. 04/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. ORDER ON CRL.M.P. NO. 527/2001 IN CRL.R.P. NO. 125/2001 DISMISSED 04/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.125 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2009 ORDER Revision petitioner is the accused in S.T.Case No.1266/199 of Judicial First Class Magistrate Court I, Perinthalmanna and appellant in Crl.Appeal No.128/1997 of Sessions Court, Manjeri. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for three months by the trial court which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused purchased on credit poultry feeds from the complainant who is a wholesale dealer in poultry feeds at Ootty road, Perinthalmanna and towards the amount due to the complainant, the accused issued the cheque Ext.P1 dated March 2, 1995 for Rs. 53014.17 drawn on the Perinthalmanna branch of Canara Bank which when presented for collection was returned dishounoured for Crl.R.P.No.125/01 Page numbers want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P5 dated March 8, 1997, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PWs 1 to 3 were examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused submitted that he purchased poultry feeds for a sum of Rs. 25,662.67 and that the cheque was issued as a security . Ext.D1 was produced on the side of the accused. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act , convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. Crl.R.P.No.125/01 Page numbers 5. Heard the counsel for the revision petitioner and the counsel for the first revision respondent. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of 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 7. PWs 1 to 3 were examined and Exts.P1 to P6 were marked on the side of the complainant to prove the guilt of the accused. PWs 2 and 3 are the Managers of the bank. PW3 is the complainant. He testified in terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6 and the evidence of PWs 1 and 2. 8. The main contention raised by the counsel for the petitioner Crl.R.P.No.125/01 Page numbers is that the first respondent complainant is a firm and that there is no evidence to show that the firm is a registered firm and that therefore the amount covered by the cheque is not a debt that is legally enforceable under Section 69(2) of the Indian Partnership Act. Both the courts below rejected the above contention of accused. . Further in Kerala Areacanut Stores v. M/s.Ramkishore and Sons and another ( AIR 1975 Kerala 144) it has been held by this court that a suit by a partner of an unregistered firm for recovery of money on dishonour of cheque endorsed in favour of the firm is not barred by Section 69(2) of Partnership Act. In the light of the principles laid down in the above decision, the above contention of the revision petitioner cannot be accepted. 9. Counsel for the revision petitioner next argued that there is no evidence to show that PW3 is the Managing Partner of the said firm and that therefore the complaint is not maintainable. But when PW3 was cross examined, it was not suggested to him that he was not the Managing partner of the said firm. That being so, it has to be taken that accused has admitted that PW3 is the Managing Partner of the said Crl.R.P.No.125/01 Page numbers firm. No other point is argued before me. I have already chosen to believe the evidence of PW3 regarding the transaction and issuance of the cheque. That being so, both the courts below are perfectly justified in accepting the evidence of PW3 and coming to the conclusion that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 10. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three months which is confirmed in appeal. The transaction is of the year 1995. Therefore, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 55,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 55,000/-, in default, to undergo simple imprisonment for Crl.R.P.No.125/01 Page numbers three months. The fine amount, if realised, shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. The revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. Two month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.125/01 Page numbers