IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.Rev.Pet.No. 3222 of 2008() ------------------------------ CRA.158/2007 of ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM CC.610/2004 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONERS/APPELLANTS/ACCUSED: ------------------------------------------- 1. M/S.NANDAVANAM TIMES, NANDAVANAMJUNCTION, COURT ROAD, CHENGANNUR,REP.BY ITS MANAGING PARTNER, RAJU.M.THOMAS,S/O.THOMAS THOMAS. 2. RAJU.M.THOMAS, S/O.THOMAS THOMAS, MANAGING PARTNER,M/S.NANDAVANAM TIMES, CHENGANNUR. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT/ RESPONDENTS/COMPLAINANT & STATE: -------------------------- 1. USHA INTERNATIONAL LTD,38/617 D, G.C.D.A.WAREHOUSING COMPLEX, GANDHI NAGAR, KADVANTHRA.P.O, COCHIN, REP.BY DIVISIONAL MANAGER, S.NANDAN MENON, S/O.N.S.MENON. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.3222 OF 2008 ------------------------------------------ Dated this the 30th day of September, 2008 O R D E R Petitioners are convicted and sentenced for the offence under section 138 of Negotiable Instruments Act in C.C.610 of 2004, a complaint filed by the first respondent. Case of first respondent company is that first petitioner is the partnership firm and second petitioner is its Managing Partner and third accused is the partner and for the purpose of the business the firm purchased consumer durables from first respondent on credit basis and towards its payment, issued Ext.P2 and P3 cheques respectively for Rs.53,156/- and Rs.43,018/- dated 17.1.2004 and 27.1.2004 and when the cheques were presented for encashment through Bank of Baroda, M.G. Road Branch, they were dishonoured for want of sufficient funds and in spite of sending notice demanding the amount covered by dishonoured cheques, it was not paid and thereby offence was committed. All the accused pleaded not guilty. Learned Magistrate on the evidence of authorised Power of Attorney CRRP 3222/08 2 holder of first respondent company as PW1 and Exts. P1 to P8 and the third accused as DW1 found third accused not guilty and acquitted him. Finding that second petitioner, the Managing Partner, and the first petitioner firm are guilty, the learned Magistrate convicted and sentenced first petitioner firm for a fine of Rs.5,000/- and second petitioner to simple imprisonment for two months and a compensation of Rs.97,174/- under section 357(3) of Cr.P.C. Petitioners challenged the conviction and sentence before Sessions Court, Ernakulam in Crl. Appeal 158 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence as against the second petitioner to simple imprisonment for one month in addition to a compensation of Rs.1,09,000/- with a default sentence of simple imprisonment for two months under section 357(3) Cr.P.C. The revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioners were heard. 3. Learned counsel did not challenge the conviction and only pleaded for modification of the sentence stating that the substantive sentence may be avoided. So long as the sentence is CRRP 3222/08 3 not to be modified as against the interest of the second respondent, it is not necessary to issue notice to first respondent. 4. The evidence establish that first petitioner firm had purchased consumer durables from first respondent company on credit basis. Evidence also establish that second petitioner as Managing Partner of first petitioner partnership firm issued Exts.P2 and P3 cheques towards payment of the amount due and the cheques when presented for encashment were dishonoured for want of sufficient funds. The Courts below on the evidence rightly found that Exts.P2 and P3 cheques were issued by the second petitioner as Managing Partner of the first petitioner firm towards the amount due from the firm to first respondent company and the cheques were dishonoured for want of sufficient funds. Evidence also establishes that first respondent has complied with all the statutory formalities provided under section 138 and 142 of Cr.P.C. The conviction of petitioners for the offence under section 138 is therefore perfectly legal and correct. 5. Then the question is with regard to the sentence. First petitioner firm was sentenced only for a fine of Rs.5,000/-. CRRP 3222/08 4 I do not find any reason to interfere with that sentence. Second petitioner was sentenced to simple imprisonment for one month in addition a compensation of Rs.1,09,000/- with a default sentence. As rightly pointed out by the learned counsel appearing for petitioners, in view of the declaration of law by Apex Court that compensation awarded under section 357(3) cannot be with a default sentence, that portion of the sentence is not sustainable. In the nature and circumstances of the case interest of justice will be met if substantive sentence is reduced to imprisonment till rising of Court and a fine of 1,10,000/- and in default to simple imprisonment for two months. On realisation of fine amount Rs.1,09,000/- is to be paid to first respondent under section 357(1) of Cr.P.C. Learned counsel appearing for petitioners submitted that petitioners may be granted three months time to pay fine amount. It is granted. Revision is allowed in part. Conviction of the petitioners for the offence under section 138 of N.I.Act and sentence of first petitioner are confirmed. The sentence as against second petitioner is modified to imprisonment till rising of the Court and a fine of Rs.1,10,000/- to be paid within three months from today and in default, simple imprisonment for two months. On CRRP 3222/08 5 realisation of the fine of Rs.1,09,000/- is to be paid to the first respondent as compensation under section 357(1) of Cr.P.C. Petitioner is directed to appear before the learned Magistrate on 31.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-