IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.Rev.Pet.No. 643 of 2004() ----------------------------- CRA.884/2002 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1050/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT /IST ACCUSED ------------------------------------------------------------------ MARIA CEMENTS, MATHA SHOPPING COMPLEX, TRIPUNITHURA, REP. BY ITS PARTNER, P.Z.PAULOSE. BY ADV. SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.GEORGE KARITHANAM VARGHESE RESPONDENT(S): RESPONDENTS /COMPLAINANT & STATE ----------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. MALABAR CEMENTS, HEAD OFFICE AT WALAYAR PALAKKAD BRANCH OFFICE, MARKET ROAD NORTHEND , REP. BY B.RAJENDRAN, SALES MANAGER ADV. SRI.K.ANAND (A.201) FOR R2 SMT.LATHA KRISHNAN FOR R2 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.2535/2004 IN CRL.R.P.NO.643/2004 DISMISSED 22-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.643 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010 ORDER Challenge in this revision petition by the first accused firm is to the judgment of Additional Chief Judicial Magistrate of Ernakulam in C.C.No.1050/1998 dated September 9, 2002 convicting the revision petitioner under Section 138 of Negotiable Instruments Act and sentencing it to pay a fine of Rs. 40,000/-. Out of the fine amount Rs. 35,000/- was ordered to be paid to the complainant as compensation. Revision petitioner/first accused challenged its conviction and sentence in Crl.Appeal No.884/2002 before the Additional Sessions Judge (Adhoc I), Ernakulam. The lower appellate court by judgment dated October 15, 2003 dismissed the appeal as the petition to condone the delay in filing the appeal was dismissed. 2. The case of the revision second respondent/complainant as testified by PW1, the Marketing Manager of the complainant company and as stated in the complaint in brief is this : Revision petitioner is a partnership firm namely M/s. Maria Crl.R.P.No.643/2004 2 Cements, Thripunithura, Ernakulam dealing in cement. Complainant is M/s. Malabar Cements represented by its Sales Manager. Revision petitioner is the first accused. Second accused in the above case was one Paulose who was the partner in the first accused firm. Towards the value of the cement supplied by the complainant to the accused persons, they issued the cheque Ext.P2 dated July 23, 1998 drawn on the Panampilly branch of Federal Bank for Rs. 32,200/- which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. Inspite of the notice Ext.P4 dated August 17, 1998 the accused did not repay the amount. Therefore, the complainant company filed the complaint under Section 138 of Negotiable Instruments Act before the trial court through its Sales Manager- in- charge. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of PW1 the Marketing Manager of the complainant company and took cognizance of the offence. The second accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. On the side of the complainant company, PW1 was examined and Exts.P1 to P6 Crl.R.P.No.643/2004 3 were marked. When questioned under Section 313 Cr.P.C, the second accused denied the entire transaction. No defence evidence was adduced. On an appreciation of evidence, the trial court found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act and imposed a fine of Rs. 40,000/-. Out of the fine amount Rs. 35,000/- was ordered to be paid to the complainant as compensation. The second accused was acquitted by the trial court. The appeal filed by the revision petitioner/first accused was dismissed by the lower appellate court as the petition to condone th delay in filing the appeal was dismissed. 4. When the revision petition came up for hearing today, the learned counsel for the revision petitioner submitted that against the acquittal of the second accused by the trial court, the revision second respondent/complainant filed Crl.Appeal No.1049/2002 before this court and this court by judgment dated October 26, 2009 set aside that judgment and convicted him under Section 138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs. 35,000/-, in default to undergo simple imprisonment for three months. He produced the copy of the receipt for having second respondent paid the Crl.R.P.No.643/2004 4 fine amount before the trial court. In this revision, conviction of the revision petitioner under Section 138 of Negotiable Instruments Act by both the courts below is not seriously challenged. Therefore, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. 5. As regards the sentence, as the second respondent has already sentenced to pay the fine of Rs. 35,000/- and as he has deposited the fine amount before the trial court, a lenient view is taken. As the revision petitioner is a firm, I feel that a fine of Rs. 1,000/- would meet the ends of justice. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Revision petitioner is sentenced to pay a fine of Rs. 1,000/-. One months time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.643/2004 5