IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.Rev.Pet.No. 252 of 2008() --------------------------------------- CRA.203/2007 OF ADDL. SESSIONS COURT FAST TRACK-II, ALAPPUZHA CC.1058/2005 OF JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... PETITIONERS/APPELLANTS/ACCUSED ------------------------------------------------------ 1. ARMEES, P.B.NO.409, DEEPAMBIKA BUILDING, OPP.DISTRICT INDUSTRIES CENTRE REPRESENTED BY ITS MANAGING PARTNER P.R.SIVARAMAN NAIR. 2. P.R.SIVARAMAN NAIR, S/O.RAGHAVAN PILLAI, MANAGING PARTNER, ARMEES, RESIDING AT SIVARADHA KAITHAVALAPPIL PUTHENVEEDU, ZILLA COURT WARD, ALAPPUZHA DT. BY ADV. SRI.K.K.SATHEESH RESPONDENTS/RESPONDENTS/ COMPLAINANT --------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MADHUSOODANAN NAIR, S/O.RAMAKRISHNA PILLAI, GOWRI BHAVAN, ASRAMAM WARD, AVALOOKUNNU P.O., ALAPPUZHA. PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R1 ADV. SRI.S.SANAL KUMAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 252 OF 2008 ............................................ DATED THIS THE 6th DAY OF NOVEMBER, 2008 ORDER Petitioners are accused 1 and 2 in C.C.1058 of 2005 on the file of Judicial First Class Magistrate-I, Alappuzha. First petitioner is a firm and second petitioner, its managing partner. Second respondent is the complainant. Complaint was lodged against petitioners and third accused, who is the wife of second petitioner, contending that they committed the offence under Section 138 of N.I.Act. Case of first respondent was that second petitioner is the managing partner of the first petitioner firm and his wife is also a partner and for the business purpose of the firm, second petitioner borrowed Rs.15,900/- and Rs.12,500/- and towards its repayment, issued Ext.P1 and P1(a) cheques dated 15.12.2003 and 25.12.2003 drawn in the account maintained by first petitioner and when the cheques were presented, under Ext.P2 and Ext.P2(a), they were dishonoured for want of sufficient funds and though Ext.P4 notice was sent in the correct address of petitioners, they did not receive the same and Ext.P6 to P6(b) were returned and as petitioners did not pay the amount, they committed the offence under Section 138 CRRP 252/2008 2 of N.I.Act. Petitioners and third accused pleaded not guilty. 2. Learned Magistrate, on the evidence of PW1, DW1 and Exts.P1 to P6 and D1 and D2, found the third accused not guilty. She was acquitted. Petitioners were found guilty and were convicted. Second petitioner was sentenced to simple imprisonment for three months and petitioners were directed to pay a compensation of Rs.28,400/- and in default, second petitioner was directed to undergo simple imprisonment for three months. Petitioners challenged the conviction before Sessions Court, Alappuzha in Crl.A.203 of 2007. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for revision petitioners and second respondent were heard. 4. Learned counsel appearing for petitioners argued that courts below should have accepted Ext.D1 and D2 and found that the amount covered under Ext.P1 and Ext.P1(a) cheques were respectively paid under Ext.D1 and D2 receipts and therefore no offence under Section 138 of N.I.Act was committed. Learned counsel argued that evidence of PW1 shows that he admitted the CRRP 252/2008 3 signature in Ext.D1 and evidence of DW1 establish that Ext.D2 receipt was issued by second respondent and therefore the conviction is not sustainable. 5. Learned counsel appearing for second respondent pointed out that as rightly found by courts below, Ext.D1 and D2 are not admitted by second respondent and evidence of DW1 do not establish execution of Ext.D1 and D2 and therefore there is no reason to interfere with the conviction. Learned counsel appearing for petitioner submitted that in any case sentence may be modified and petitioner may be granted opportunity to pay the amount covered by the dishonoured cheque. 6. The fact that Ext.P1 and P1(a) cheques were issued towards the amount borrowed earlier was not disputed at the time of evidence. The only contention was that the amount borrowed was discharged. Petitioner is relying on Ext.D1 and D2 receipts to prove the discharge. Though learned counsel argued that Ext.D1 receipt was admitted by second respondent, when examined as PW1, on going through the deposition of PW1, it is clear that PW1 did not admit the execution or even signature seen in Ext.D1 and D2. When Ext.D1 was shown to PW1, at the time of cross examination, firstly he said that it is his signature CRRP 252/2008 4 and immediately he said that it appears to be his signature and later deposed that it is not his signature at all. PW1 asserted that Ext.D1 is not a receipt issued by him and the handwriting in Ext.D1 is not his handwriting and he did not receive the amount as stated therein. As far as Ext.D2 is concerned, PW1 deposed that it is not in his handwriting or signature and he did not receive any amount as stated therein and it was not issued by him. Without proving Ext.D1 and D2, petitioners cannot establish the discharge. Even when second petitioner was examined as DW1, he has no case that Ext.D1 and D2 receipts were written by second respondent in his presence or that second respondent affixed his signature and handed over them to the second petitioner. When DW1 was cross examined, he said that second respondent did not give any receipt after putting signature and stamp. Therefore evidence of DW1 is sufficient enough to discard Ext.D1 and D2. DW1 in further examination deposed that signature seen in Ext.D1 and D2 are not the signature of second respondent. In the light of this evidence, courts below can only reject the plea of discharge based on Ext.D1 and D2. If that be so, there is no reason to interfere with the conviction. CRRP 252/2008 5 7. Then the only question is with regard to the sentence. Ext.P1 and P1(a) together is for Rs.28,400/-. First petitioner is a partnership firm and second petitioner its managing partner. Even though first petitioner was also convicted by learned Magistrate, no sentence was awarded as against first accused. First petitioner firm was only directed to pay compensation along with second petitioner. Compensation under Section 357 (3) of Code of Criminal Procedure is not a sentence. Second respondent did not file any revision challenging the non- awarding of a sentence against first petitioner. Therefore in revision, it is not possible to award a sentence as against first revision petitioner, when learned Sessions Judge confirmed the sentence as awarded by learned Magistrate. The only question is with regard to sentence awarded against the second petitioner. Interest of justice will be met, if sentence is modified with adequate compensation to second respondent. 7. Revision petition is allowed in part. Conviction of petitioners for the offence under Section 138 of N.I.Act is confirmed. As regards second petitioner, sentence is modified to imprisonment till rising of court and a fine of Rs.30,000/- and in default, simple imprisonment for two months. On realisation of CRRP 252/2008 6 fine, Rs.29,000/- is to be paid to the second respondent as compensation under Section 357(1) of Code of Criminal Procedure. Learned counsel appearing for petitioner submitted that as directed by learned Sessions Judge and this court, petitioner deposited Rs.10,000/- before learned Magistrate. If so, second petitioner need only deposit the balance of the fine. He is granted two months time from today to pay the fine. Second petitioner is directed to appear before learned Magistrate on 8.1.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk/-