IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 Crl.Rev.Pet.No. 3167 of 2009() ------------------------------ CRA.410/2008 of ADDL.SESSIONS COURT-II, KOZHIKODE ST.12408/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.NARENDRAN,S/O.K.DAMODARAN, AGED 46 YEARS,ASSISTANT TEACHER, S.M.M.A.U.P.SCHOOL,SIVAPURAM, KARUMALA,BALUSSERY,KOZHIKODE DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. LORD KRISHNA BANK LTD., KOZHIKODE BRANCH,PARAMOUNT TOWER, KOZHIKODE,REP.BY ITS BRANCH MANAGER, AND P.A.HOLDER C.K.PRADEEP KUMAR, S/O.LATE MADHAVAN NAIR,NAGARAM AMSOM DESOM, KOZHIKODE. 2. CENTURIAN BANK OF PUNJAB LTD., KOZHIKODE BRANCH,PARAMOUNT TOWER, KOZHIKODE,REP.BY ITS PRINCIPAL OFFICER AND BRANCH MANAGER SHRI.K.C.JOSE,52 YEARS, S/O.K.C.CHACKO. 3. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.R.P. No.3167 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2009 O R D E R The revision petitioner is the accused in S.T.No.12408 of 2007 on the file of the Judicial First Class Magistrate-II (Mobile Court), Kozhikode. The first respondent which was amalgamated with the second respondent during the pendency of the proceedings before the trial court, prosecuted the revision petitioner alleging offence under section 138 of the Negotiable Instruments Act. After due trial the learned Magistrate arrived at a finding of guilty. Consequently, he was convicted and sentenced to undergo imprisonment till rising of the Court and a fine of Rs.40,500/- with default clause to undergo simple imprisonment for a further period of two months. Crl.A.No.410/09 preferred by the revision petitioner was dismissed by the Second Additional Sessions Court, Kozhikode. Assailing the legality, correctness and CRL.R.P. No.3167 of 2009 2 propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 2. Having heard the counsel for the revision petitioner and perusing the judgment of the court below I find that respondent 1 & 2 by the evidence of PW1 supported by Exts.P1 to P8 had succeeded to establish that the revision petitioner owed a sum of Rs.40,470/- to the 1st respondent and in discharge of that liability issued Ext.P1 cheque dated 18.8.06 and that when Ext.P1 was sent for collection, it was returned dishonoured, along with Ext.P2 memo, for insufficient funds. Demanding discharge of the liability, a lawyer notice, copy of which is marked as Ext.P3 was issued and the same was acknowledged as evidenced by Ext.P5. Despite the notice, the liability was not discharged. The defence plea was that at the time of availing loan he had handed over a blank cheque to the first respondent and that was misused and the prosecution was launched. There is no CRL.R.P. No.3167 of 2009 3 material on record to show that the admitted loan liability was discharged. Hence it had to be presumed that the liability is still existing and it is for the discharge of that liability, the cheque issued by the revision petitioner was sent for collection. The revision petitioner had also challenged the locus standi of PW1 to adduce evidence on behalf of respondents 1 & 2. Admittedly, PW1 is the power of attorney holder of the 1st respondent. He was an employee of the 1st respondent. By the amalgamation of the 1st respondent with the 2nd respondent, he became the employee of the 2nd respondent. Admittedly, the amalgamation has statutory support. By amalgamation all assets and liabilities of the 1st respondent was amalgamated with the 2nd respondent. So also, all action of deeds if any by the 1st respondent would be treated as that of the 2nd respondent. So despite of the amalgamation, PW1 is competent to give evidence on the basis of the power of attorney CRL.R.P. No.3167 of 2009 4 executed by the 1st respondent. The court below had correctly appreciated the evidence. I find no error, illegality or impropriety committed by the court below in arriving at a conclusion which is based on cogent evidence. Finding of guilty and conviction therein requires no interference. 3. According to the learned counsel for the revision petitioner, the revision petitioner is a Teacher, in S.M.M.U.P.School, Sivapuram and that he had remitted major portion of the dues covered by the cheque amount before the trial court and that the revision petitioner would remit the balance amount also. In the above circumstance, I find that it would be appropriate to reduce the sentence to a fine of Rs.45,000/- . 4. In the result revision is allowed in part. The conviction is confirmed . The sentence is reduced to a fine of Rs.45,000/- . In default of payment of fine, revision petitioner shall undergo simple imprisonment CRL.R.P. No.3167 of 2009 5 for 4 months. Revision petitioner is granted 4 months time to pay the fine on executing a bond for Rs.20,000/- with two solvent sureties for like amount to the satisfaction of the trial court within 3 weeks. The amount if any deposited shall be given credit to the fine. The fine amount, if realized, Rs.42,000/- shall be paid to the 2nd respondent as compensation. P.S.GOPINATHAN, JUDGE sks