IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Crl.Rev.Pet.No. 728 of 2006() --------------------------------------- CRA.1072/2004 of V ADDL.SESSIONS COURT, ERNAKULAM CC.185/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KOCHI .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- DR.B.UNNIKRISHNAN NAIR, PROPRIETOR, ARAVIND EXPORTS, 8/1488,KOCHI-2. BY ADV. SRI.V.M.KURIAN SRI.A.V.THOMAS SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENTS/1ST RESPONDENT/COMPLAINANT ------------------------------------------------------------------------ 1. M/S.PRESTOPACK, 7/379, DARUSSALAM ROAD, KOCHI-2(THE COMPLAINANT IS REPRESENTED BY ITS MANAGING PARTNER, MRS.K.B.SHEEBA, W/O.T.K. UMESH KUMAR 19/1760, KADAIPARAMBIL HOUSE, PALLURUTHY, KOCHI.) 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R2 ADV. SRI.T.A.ANTONY FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== CRL.R.P. No.728 OF 2006 ===================== Dated this the 24th day of November 2008 O R D E R This revision petition is preferred against the judgment of the Sessions Court, Ernakulam in Crl.A.No.1072 of 2004. It was preferred against the conviction and sentence passed by the Judl.I Class Magistrate Court-II, Kochi in CC No.185/2002. The petitioner was found guilty under Section 138 of the Negotiable Instruments Act and he was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs.96,000/- under Section 357(3) Crl.P.C., failing which the accused shall undergo simple imprisonment for a further period of three months. 2. The case of the complainant is that towards the price of cartons purchased a cheque was issued by the revision petitioner towards discharge of liability which when presented for encashment returned with the endorsement insufficiency of funds. The contention of the revision petitioner is to the effect that no such amount was due as it has already been paid and it is only as security for the purpose of purchase of materials and therefore no action will lie under Section 138 of the NI Act. CRL RP 728/06 -:2:- 3.In the trial court, PW1 was examined and Exts.P1 to P7 were marked. On appreciation of the materials the trial court held about the transaction and directed him to undergo the sentence awarded. The appellate court in appeal reappraised the entire materials and confirmed the finding of guilt but reduced the sentence. 4. In the revision, it is contended that the power of attorney holder is not competent to sue on behalf of the firm and therefore no action will lie. PW1 is the power of attorney holder and he is also the managing partner. Relying on a clause that power has to be exercised after consultation with other partners it was argued that the power of attorney holder cannot file the same. The appellate court rightly said that in such cases to have that consultation one need not have a document at all. It also found that being a managing partner in charge of the helm of affairs of the company he was competent and therefore entitled to sue. The Apex Court in the decision reported in M/s.MMTC Ltd. v. M/s. Medchl Chemicals & Pharma Pvt.Ltd. (AIR 2002 SC 182) held that an action can be initiated by payee or the holder in due course of the said cheque, when the complainant is lodged in the name and on behalf of the company, who is the payee of the cheque which is maintainable. So, in the light of this pronouncement also, the decision of the courts below cannot be found fault with. CRL RP 728/06 -:3:- 5. So far as the factual matrix is concerned, there was a transaction between the petitioner and the complainant, which is proved. But what is pleaded is that the said amount had already been paid. Ext.P1 is only given as a security at the time of purchase of the articles. There is nothing to show that at any point of time the amount had been paid. Both the courts below analysed the matter and found that the evidence of PW1 appears to be more consistent and trustworthy and also held that other ingredients are also proved. I do not find any illegality in arriving at such a decision. Therefore the finding under Section 138 is sustained. 6. So far as the sentence is concerned, the appellate court has modified the sentence directing the accused to undergo simple imprisonment for one month and to pay a compensation of Rs.1,00,000/-. Learned counsel pleads for leniency. I feel leniency can be shown by reducing the sentence to undergo imprisonment for a day, i.e. till the raising of the court and to convert the compensation into that of a fine of Rs.96,000/- which on realisation shall be disbursed to the complainant. In the result, the revision petition is disposed of as follows: (1) The finding of guilt under Section 138 is sustained.(2) The sentence is modified and the petitioner is directed to undergo simple imprisonment for one day , i.e. till the raising of the court and to pay a fine of Rs.96,000/- which on CRL RP 728/06 -:4:- realisation can be disbursed to the complainant and in default, the petitioner shall undergo simple imprisonment for two months.(3) The revision petitioner shall appear before the trial court for receiving sentence and for making payment of fine on 16.2.2009. In case of failure to be present, the trial court shall execute the sentence. If any amount is deposited as compensation, it shall be converted into fine and the said amount shall be disbursed to the complainant on appropriate application and it shall be treated as forming of part of fine. M.N.KRISHNAN, JUDGE Cdp/-