IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 Crl.Rev.Pet.No. 2124 of 2011() ------------------------------------------- CRA.488/2010 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM ST.156/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT- IV, KOCHI. .................... REVN. PETITIONER(S):/APPELLANT/ACCUSED ------------------------------------------------------------------ NITHA SURENDRAN, PROPRIETOR, M/S.MANGAT TILES DEPOT, KUREEKKAD P.O., THIRUVANKULAM, ERNAKULAM DISTRICT. BY ADV. SRI.M.G.DEVIPRASADAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------------------------- 1. M/S.REGMA CERAMICS LIMITED, 1203/A 50 AS ELFANS BUILDINGS, EDAPPALLY RAILWAY STATION ROAD, EDAPPALLY, ELAMAKKARA, COCHIN, REPRESENTED BY MR.PHILIP KURUVILLA, S/O.LATE K.I.KURUVILLA, SR.REGIONAL MANAGER, PIN 682 026. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R1 BY ADV. SRI.ABRAHAM THOMAS R2 BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2124 OF 2011 ----------------------------------------- Dated this the 29th day of September 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently, by the two inferior courts. The learned Magistrate, on his conviction, has sentenced her to undergo simple imprisonment for three months and to pay fine of `.14,50,000/-, the cheque amount, with default term of simple imprisonment for three months more. In appeal, affirming the conviction, the learned Sessions Judge modified the substantive term of imprisonment reducing it to imprisonment for a day, till the rising of the court, retaining the fine amount awarded with the default term as fixed by the Magistrate. Feeling aggrieved, the accused has filed this revision. 2. Notice given, the 1st respondent/complainant has entered appearance through counsel. I heard the counsel on both sides. 3. Conviction entered against the accused, concurrently, by the two courts below is assailed by his learned counsel pressing forth several challenges. It is contended that no notice was served on the accused before filing of the complaint and what has been produced before the court is only a postal receipt, as to the issuing of notice on Crl.R.P No.2124/2011 - 2 - dishonour of the cheque. When a challenge is raised as to nonserving of notice, it was incumbent upon the complainant to lead positive evidence that notice had been issued to the accused intimating him of the dishonour, within the statutory period fixed, to commence prosecution of the accused for the offence under Section 138 of the NI Act, is the submission of the counsel. It is further contended that though a power of attorney was produced to prosecute the complaint on behalf of the complainant, which is a company, it has not been exhibited in evidence. Competency of the witness examined as the power of attorney holder of the complainant company was challenged by the accused, is the submission of the counsel. Apart from the aforesaid objections canvassed impeaching the entertaining of the complaint for the offence under Section 138 of the NI Act, the counsel would also contend that the execution of the cheque had been denied by the accused and when that be so, proof thereof was essential to found a conviction. Other than the evidence of a Manager of the Company, who had no direct dealing with the transaction, no material, whatsoever, was placed to prove due execution of the cheque, according to the counsel. The defence canvassed that the materials supplied were taken by the accused as a dealer of the Company after handing over a bundle of cheques in Crl.R.P No.2124/2011 - 3 - blank form as security, according to the counsel, is shown as probable by the admissions made by PW1, who has candidly stated that the cheques were received earlier with the amount column left as blank to supply materials from the Company. Both the courts have ignored the material circumstances indicated above and also the defence projected by the accused, is the submission of the counsel to contend that the conviction imposed against her is totally unsustainable. On the other hand, the learned counsel for the respondent/complainant contended that within the narrow scope of the revisional jurisdiction concurrent finding of guilt entered by the courts below appreciating the materials rendered in the case is not assailable on any of the grounds canvassed by the revision petitioner/accused. There is no ground, whatsoever, for interfering with the conviction entered against the accused, is the submission of the counsel for the complainant. 4. Perusing the records of the case, it is seen that when questioned under Section 313 of the Code of Criminal Procedure the accused has specifically admitted of receiving the notice. When such be the case, arguments canvassed by the counsel that only a postal receipt was produced by the complainant to prove issue of notice need be taken note only for its rejection. As regards the challenge Crl.R.P No.2124/2011 - 4 - raised that the power of attorney produced was not even exhibitted in evidence it is seen that no challenge thereof as to the competency of the manager of the complainant Company to prosecute and gave evidence was raised when he was examined in the case. More over, it is not the exhibiting of the power of attorney produced, but, production of the documents before the court that is to be considered. Then, on the merits of the case, there was denial on execution of the cheque and therefore, positive evidence should have been given by the complainant to prove the transaction, it has to be stated that the trial Magistrate who had the opportunity to record the evidence, after going through the materials produced, more particularly the evidence of the representative of the company, examined as PW1, found his testimony credible and trustworthy. During the course of questioning under Section 313 of the Code of Criminal Procedure, the accused has stated that she has defence evidence. Other than marking some documents at the time of examination of the representative of the company as Exts.D1 to D3, nothing more was tendered. It is an admitted fact that the accused continued as a dealer of the Company and she used to collect materials supplied by the Company, handing over cheques. Even assuming the version that such cheques were issued in blank form Crl.R.P No.2124/2011 - 5 - with signature alone, the holder of the instrument has competency to fill up such instrument to make it presentable. Unless it is shown that in doing so he has exceeded the authority, the challenge raised by the counsel that the cheque had been issued in blank form cannot be given merit at all. In the background of the proved fact that series of transaction had taken place between the parties and that the accused as a dealer of the company collected materials on credit it is only probable to hold that company had reposed some trust on the accused, its dealer. The cheque was issued towards supply of goods, for its value, is undisputed. It has to be noticed that the accused who accepted the statutory notice has not responded to such notice with any reply. The belated defence canvassed at the stage of trial that the liability was only for a lesser sum than what was covered by the amount stated in the instrument, without producing any convincing materials thereof, is hardly sufficient to discredit the case of the complainant. Within the narrow limits of the supervisory jurisdiction exercisable in revision, I find that none of the challenges raised by the counsel is sufficient to interfere with the conviction concurrently entered against the accused, which is founded on unimpeachable legal evidence. Crl.R.P No.2124/2011 - 6 - 5. Sentence imposed against the accused is shown to be just and proper, and no interference is called for. The learned counsel for the revision petitioner, at this stage, reguested for some more time stating that the amount involved is substantial and at present the accused is facing severe financial difficulties. Having regard to the submissions made by the counsel, some more time for payment of the fine is granted as indicated hereunder. 6. Affirming the conviction and also the sentence imposed against the accused, she is directed to appear before the Magistrate on 19-12-2011 to serve out the substantive term of imprisonment for a day, till the rising of the court, and to report payment of fine. The learned Magistrate is directed to keep in abeyance the execution of sentence against the accused till the date fixed as above for her appearance. In default of her appearance and nonpayment of the fine, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge