IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.Rev.Pet.No. 3346 of 2008() ------------------------------ CRA.195/2007 of SESSIONS COURT, KASARAGOD CC.155/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT II,KASARAGOD .................... REVISION PETITIONER:APPELLANT:ACCUSED: ----------------------------------------------------------------------- P.K.SASIDHARAN, AGED 45 YEARS, S/O LATE P.A. KARUNAKARAN, R/AT PAMBAYKAL, KALICHAMARAM, P.O. PILIKODE, PILICODE VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENTS:RESPONDENTS/COMPLAINTS:- ------------------------------------------------------------------------ 1. S.RAJU, AGED 42 YEARS, S/O R.SADASIVAN, EDITOR & PUBLISHER OF KARAVAL DAILY, INDUSTRIAL ESTATE, VIDYA NAGAR, KASARGOD DISTRICT. 2. STATE-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3346 OF 2008 =========================== Dated this the 7th day of October,2008 ORDER Petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act by Judicial First Class Magistrate, Kasaragod in C.C.155/2006. First respondent is the complainant. Case of the first respondent was that towards the amount due, petitioner issued Ext.P1 cheque drawn on his account maintained in Canara Bank, Cheruvathur Branch on 31.7.2002 and when Ext.P1 was presented for encashment, it was dishonoured under Ext.P2, for want of sufficient funds and first respondent sent Ext.P3 notice demanding the amount covered under Ext.P1 cheque and it was returned unclaimed under Ext.P5 and petitioner did not pay amount and thereby CRRP 3346/08 2 committed the offence under section 138 of N.I.Act. Petitioner pleaded not guilty. First respondent was examined as PW1 Exts.P1 to P6 were marked. On the side of petitioner he was examined and D1 and D2 were marked. Learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced him to simple imprisonment for three months and a compensation of Rs.12,000/- with a default sentence of simple imprisonment for one month. Petitioner challenged the conviction and sentence before Sessions Court, Kasaragod. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of court, while confirming the compensation. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel vehemently argued that Ext.P1 cheque is in the name of Caraval Company Ltd and first respondent is an individual and he did not produce any authorization from the Company and CRRP 3346/08 3 therefore conviction of the petitioner is not sustainable. Learned counsel also argued that Ext.D1 agreement and D2 receipt for payment of Rs.4000/- establish that part of the amount due under Ext.D1 was paid and as deposed by DW1 the balance amount was also paid and in such circumstance, it should have been found that Ext.P1 cheque was not issued towards discharge of any existing liability and therefore conviction is not sustainable. Learned counsel also submitted that in any case petitioner is to be granted two months time to pay the amount. 4. Though it was vehemently argued that the payee under Ext.P1 cheque is Caraval Company and therefore the complaint filed by first respondent is not maintainable, it was specifically pleaded in the complaint itself that first respondent is the editor and publisher of Caraval Daily. The evidence of PW1 is that Ext.P1 cheque was issued to the Caraval Daily, a proprietory concern of the first respondent and cheque was issued towards the payment due from the petitioner. It is the case CRRP 3346/08 4 that petitioner was the agent of Caraval Daily and he defaulted to remit the subscription charges collected from the subscribers and towards the payment of that amount Ext.P1 cheque was issued. Though it was argued by learned counsel that cheque is in favour of Caraval Company, evidence of DW1 the petitioner himself is that he was the agent of Caraval Daily and for no reason Caraval Daily stopped to issue papers to him for distribution to the subscribers and when enquired it was disclosed to DW1 that amount is due and thereafter Ext.D1 agreement was executed and evidenced Ext.D2 receipt, Rs.4000/- was paid and the balance was also subsequently paid. Therefore it is clear that transaction of the petitioner was with Caraval Daily. The evidence establish that first respondent is the sole proprietor and publisher of the Daily. Evidence also establish that Ext.P1 cheque was issued to the said Caraval Daily, though the payee is shown as Caraval company. There is no evidence to prove that there is any Caraval Company apart from the proprietory concern Caraval Daily. CRRP 3346/08 5 5. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that Ext.P1 cheque was issued towards the amount due which was legally recoverable by the petitioner to first respondent. Ext.P2 establish that Ext.P1 cheque was dishonoured for want of sufficient funds. Ext.P6 the ledger extract of the account also establish that sufficient amount was not there in the account. Ext.P3 notice was issued by first respondent demanding the amount covered by the dishonoured cheque within the statutory period. Evidence also establish that notice was sent in the correct address but was returned unclaimed after serving intimation on the petitioner. Petitioner did not pay the amount. Therefore conviction of the petitioner for the offence under section 138 of N.I.Act is perfectly legal and regular. 6. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of the court, in addition to compensation for the amount CRRP 3346/08 6 covered by the dishonoured cheque. In view of the law laid down by the Apex Court, when compensation is awarded under section 357(3) of Code of Criminal Procedure, default sentence cannot be awarded. Therefore to that extent the sentence is not legal. Interest of justice will be met if the sentence is modified. Revision Petition is allowed. Conviction confirmed. Petitioner is sentenced to imprisonment till rising of court and a fine of Rs.12,000/- and in default simple imprisonment for one month. On realization of the fine amount, it is to be paid to first respondent as compensation. Petitioner is granted two months time to pay the amount. Petitioner is directed to appear before the Magistrate on 11.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/-