IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Crl.Rev.Pet.No. 2154 of 2007() ------------------------------ CRA.967/2005 of SESSIONS COURT, ERNAKULAM CC.1220/2001 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- SHIBU, AGED 39 YEARS, MANAGING PARTNER, M/S.SIVA ENTERPRISES, PONEKKARA ROAD, EDAPALLY, ERNAKULAM. BY ADV. SRI.M.A.JOSEPH MANAVALAN SRI.P.A.MARTIN ROY SRI.SOORAJ T.ELENJICKAL RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. M/S.CENTURY PLYBOARDS (I) LTD, 64/2403, K.K.PADNABHAN ROAD, ERNAKULAM, KOCHI-18, REP. BY POWER OF ATTORNEY HOLDER, VARGHESE ZACHARIA, S/O.SAKARIA,JESSY VILLA, THAIKATTU KARA, ALUVA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI CM NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON ON 22/10/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 2154 OF 2007 ............................................ DATED THIS THE 22nd DAY OF OCTOBER, 2008 ORDER Petitioner is the accused and first respondent, the complainant in C.C.1220 of 2001 on the file of Chief Judicial Magistrate, Ernakulam. First respondent lodged the complaint contending that towards discharge of the liability due under the business transaction, in respect of purchase of articles by Ext.P2 invoice dated 16.6.2000, petitioner issued Ext.P3 cheque for Rs.1,13,999/- drawn in his account and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds. Under Ext.P6 notice, served on petitioner under Ext.P7 acknowledgement card, first respondent demanded the amount covered by the dishonoured cheque. Petitioner sent Ext.P8 reply disputing the liability and did not pay the amount and thereby committed the offence under Section 138 of N.I.Act. 2. Petitioner pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P8 were marked. On the side of petitioner, he was examined as DW1 and four witnesses were examined as Dws 2 to 5. 3. Learned Magistrate, on the evidence, found the petitioner guilty. He was convicted and sentenced to simple imprisonment for two months, in addition to a compensation of Rs.1,13,999/- and a cost Crrp 2154/2007 2 of Rs.500/-. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.967 of 2005. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction, but modified the sentence to imprisonment till rising of court and a compensation of Rs.1,75,000/- with a default sentence of imprisonment for three months. It is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 4. Though notice was served on first respondent, he did not appear. Case of revision petitioner is that courts below did not properly appreciate the evidence and evidence of Dws 1 to 5 were not considered and therefore conviction is not sustainable. Case of petitioner, when questioned under Section 313 of Code of Criminal Procedure and when examined as DW1, was that Ext.P1 cheque was issued as a signed blank cheque, as security, for the purpose of purchasing articles on credit basis and was not issued towards repayment of the amount and the amount due under the credit sale was paid partly by cash and the remaining through witnesses and courts below should have accepted the discharge. 5. Evidence of PW1, the power of attorney holder of first respondent is that articles covered by Ext.P2 invoice was purchased by petitioner on credit basis. When examined as DW1, petitioner Crrp 2154/2007 3 admitted that fact. What is contended by first respondent was that Ext.P3 cheque was issued towards the amount due under purchase of articles on credit basis. What was contended by petitioner was that to enable the petitioner to purchase articles on credit basis, Ext.P3 was given as a blank cheque. According to petitioner, when examined as DW1, the cheque was given through DW5, who was an employee of first respondent. DW5 was not an employee of first respondent when he was examined before the Magistrate. DW5 did not support the petitioner. DW5 deposed that he does not know that petitioner had given any blank cheque to first respondent. He also deposed that no blank cheque was received from petitioner at the time of the credit sale. Therefore evidence of DW5, instead of helping the case of the defence, cuts the very root of the defence case. What was claimed by DW1 was that he paid Rs.25,000/- in cash through his wife, when first respondent came to the house along with DW5. DW5 deposed that he did not go to the house of the petitioner along with first respondent. DW2 was examined to prove that Rs.15,000/- was paid to first respondent, which was the amount which should have been paid to petitioner. But there is no evidence to prove that any such amount was paid, apart from the oral version of DW2. Any person can say that amount was paid, but that is to be proved when disputed. Therefore, based on the oral evidence of DW2, it is not possible to uphold the Crrp 2154/2007 4 discharge pleaded. Similar is the case with DW3. Though DW3 deposed that Rs.12,000/-, which was payable by him to the petitioner was given to first respondent, apart from his interested version, there is no evidence to substantiate the payment. DW4, though examined to prove that he paid Rs.18,000/- which should have been paid to DW1, DW4 did not support the defence. In such circumstances, evidence of Dws 2 to 5 do not help the petitioner to prove that he had paid the amount due to first respondent on credit basis. Appreciating the evidence, I cannot agree with the contention of the petitioner that petitioner issued Ext.P3 cheque either as security or that the amount due to be paid by petitioner for the purchase of articles from first respondent on credit basis was paid. Courts below rightly found that Ext.P3 cheque was issued towards discharge of existing liability. It is proved that Ext.P3 cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under 138 and 142 of N.I Act. Therefore conviction of 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 court, in addition to a compensation of Rs.1,75,000/-. Ext.P3 cheque is only for Rs.1,13,999/-. Interest of justice will be met, if the Crrp 2154/2007 5 sentence is modified to imprisonment till rising of court, and a fine of Rs.1,14,000/-, and in default, simple imprisonment for two months. 7. Revision petition is allowed in part. While confirming conviction for the offence under Section 138 of N.I.Act, sentence is modified to imprisonment till rising of court and a fine of Rs. 1,14,000/- and in default, simple imprisonment for two months. On realisation of the fine, it is to be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted two months time to pay the fine. Petitioner is directed to appear before learned Magistrate on 1.12.2008. M.SASIDHARAN NAMBIAR, JUDGE lgk/-