IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 Crl.Rev.Pet.No. 2488 of 2009() ------------------------------ CRA.1/2009 of SESSIONS COURT, KOTTAYAM ST.2382/2006 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... PETITIONER/APPELLANT/ACCUSED: --------------------------------------- SUSY GEORGE, DIRECTOR, THE MALABAR FOOD PROCESSORS (P) LTD., T.B.ROAD, KOTTAYAM - 686 001. BY ADV. SRI.JOSEKUTTY MATHEW RESPONDENTS/ RESPONDENTS/COMPLAINANT: --------------------------------------- 1. ULLATTIL AGENCIES, THEFEQUE BUILDINGS, KOTTAYAM, REPRESENTED BY ITS PARTNER AND POWER OF ATTORNEY HOLDER, JACOB THOMAS, S/O.ISSAC THOMAS, ULLATTIL AGENCIES, THEFEQUE BUILDINGS, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR : SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2488 of 2009 --------------------------------------- Dated this 05th day of August 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.2. 2. This revision is in challenge of judgment of learned Sessions Judge, Kottayam in criminal appeal No.1 of 2009 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. Petitioner is the Director of a company (accused No.1). Respondent No.1 is a partnership firm represented by its partner and power of attorney holder. According to respondent No.1, accused No.1, a company owed Rs.1,10000/- to it and for discharge of that liability issued Exts.P5 and P6, cheques dated 22-06-2006 for Rs.50000/- and Rs.51000/- respectively. Those cheques were dishonoured for insufficiency of funds as proved by Exts.P7 to P10 following which statutory notice was given to the petitioner and accused No.1 as proved by Exts.P11 to P15. Since petitioner and accused No.1 failed to repay the amount, respondent No.1 preferred the complaint. Partner and power of attorney holder of respondent No.1 gave evidence as PW1. Ext.P1 is the partnership deed and Ext.P2 is the registration certificate issued by Crl.R.P.No.2488 of 2009 2 Registrar of firm. Ext.P3 is the power of attorney in favour of PW1. He stated that as per the transaction which accused No.1 and petitioner had with respondent No.1, money was due to respondent No.1 for realisation of which respondent No.1 filed suit against accused No.1 and petitioner as O.S.No.390 of 2002. Ext.P17 is the copy of plaint in that case. That ended in a decree in favour of respondent No.1. Exts.P16 and P4 are the copy of judgment of decree. As per the decree more than Rs.10,00,000/- is due to respondent No.1. While so, in partial discharge of that liability petitioner and accused No.1 issued eight cheques for a total sum of Rs.593000/-. Exts.P5 and P6 are two of those cheques for Rs.1,01,000/-. According to the petitioner she had borrowed Rs.3,00,000/- from the Managing Partner of respondent No.1 for business purpose agreeing to repay the same with interest at the rate of 24% per annum and eight blank cheques were given as security. She claimed that the entire liability was discharged on 20-06-2006. Courts below did not accept that explanation and found in favour of due execution of the cheque. Accused No.1 was convicted but no separate sentence was awarded to it and that part of judgment of learned magistrate was not challenged by respondent No.1. Hence it is not necessary to go into that question in this revision. Petitioner was sentenced to pay fine of Rs.1,10,000/- and in default of payment to undergo simple imprisonment for six months. It was directed that of Crl.R.P.No.2488 of 2009 3 the fine if realised Rs.105000/- shall be paid to respondent No.1 as compensation. That conviction and sentence were confirmed by learned Sessions Judge. Hence this revision. It is contended by learned counsel that conviction of petitioner is not legal and proper. According to learned counsel no document is produced by respondent No.1 to prove the transaction or liability towards it. Further contention is that it is quite improbable that when more than Rs.10,00,000/- was due as per the decree, cheques are issued only in partial discharge of that liability. According to learned counsel, non examination of Managing partner of respondent No.1 is fatal. 3. So far as non examination of Managing Partner of respondent No.1 is concerned, PW1 who represented respondent No.1, it is not disputed and is proved by Exts.P1 to P3 is one of the partners and power of attorney holder of respondent No.1. A partner being an agent of the firm is competent to represent and give evidence regarding the transaction within his knowledge. According to PW1, he is aware of the transaction. There is no reason to disbelieve that. 4. So far as non production of account books of respondent No.1 is concerned, it is specifically stated in the complaint and evidence given by PW1 that the cheques are issued towards partial discharge of liability as per the judgment and decree in O.S.No.390 of 2002. That, petitioner and accused No.1 owed money to respondent Crl.R.P.No.2488 of 2009 4 No.1 is proved by Exts.P4 and P16. Though petitioner has a contention that the liability under the decree is also discharged, there is no evidence in that line, oral or documentary. Further contention is that signed blank cheques were given to the Managing partner of respondent No.1 in connection with Rs.300000/- petitioner had borrowed from him. Petitioner also claimed that the said amount was repaid with interest by 20-06-2006. There is no evidence of any such transaction between petitioner and Managing Partner of respondent No.1 or that such liability was discharged. 5. On going through the judgments under challenge and hearing learned counsel for petitioner I do not find reason to interfere with the finding of the courts below regarding due execution of the cheque for partial discharge of liability of respondent No.1 as per the judgment and decree in O.S.No.390 of 2002. Petitioner has drawn the cheques on behalf of accused No.1. Hence, petitioner is liable. There is little reason to interfere with conviction of petitioner. 6. So far as sentence awarded to petitioner is concerned, there is no reason to interfere at the instance of petitioner since it is only fine of Rs.1,10,000/- (Rupees One Lakh Ten Thousand Only) with default sentence. 7. It is requested by learned counsel that petitioner may be granted six months' time to deposit fine. Learned counsel states that Crl.R.P.No.2488 of 2009 5 petitioner is unable to raise the entire amount immediately. Having regard to the facts and circumstances stated by learned counsel petitioner is granted time till 30-12-2009 to deposit fine as ordered by learned magistrate. Resultantly this revision petition fails. It is dismissed. Petitioner is granted time till 30-12-2009 to deposit fine in the trial court as ordered by that court. In case of failure, petitioner shall appear in the trial court on 31-12-2009 to receive the default sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31-12- 2009. THOMAS P JOSEPH, JUDGE Sbna/