IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Crl.Rev.Pet.No. 2875 of 2008() ------------------------------------------- CRA.541/2003 of ADDL.SESSIONS COURT (FAST TRACK COURT)III, TRIVANDRUM CC.7/2003 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANTS 1 AND 2/ ACCUSED 1 & 2 ------------------------------- 1. M/S. ABM BUILDERS PVT. LTD., ABM TOWERS, P.O. BOX NO. 2040, KADAVANTHRA, COCHIN-682020. 2. MR.M.K. ABRAHAM, MG. DIRECTOR, ABM BUILDERS PVT. LTD., ABM TOWERS, KADAVANTHRA, COCHIN-20. BY ADV. SMT.T.D.RAJALAKSHMI SRI.E.R.VENKATESWARAN RESPONDENT(S): RESPONDENTS -------------------------- 1. HUDCO, KERALA STATE HOUSING BOARD COMMERCIAL CUM RESIDENTIAL COMPLEX, IST FLOOR, PATTOM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU SRI.ABDUL HAKKIM(SC) SRI.JYOTHISH.J.KALLINGAL FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/11/2008, ALONG WITH CRRP NO. 2876 OF 2008 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. -------------------------------------------------- Crl.Revision Petition Nos. 2875, 2876, 2881, 2886, 2887 & 2890 of 2008 ----------------------------------------------------------- Dated this the 18th day of November, 2008 O R D E R Revision petitioners are accused Nos.1 and 2 in C.C.Nos.23/2001, 24/2001, 25/2001, 5/2003, 6/2003 and 7/2003 on the file of the Judicial First Class Magistrate Court - IV (Mobile), Thiruvananthapuram and first respondent is the complainant. First respondent is a Government company and first revision petitioner is a private limited company. Second revision petitioner is the Managing Director of the company. Third accused is one of its Directors. Accused admittedly availed a loan of Rupees one crore from first respondent agreeing to repay the same with interest in installments. They issued Exhibits P1, P8, P15, P22, P29 and P36 cheques respectively for Rs.25,00,000/-, Rs.25,00,000/-, Rs.25,00,000/-, Rs.25,00,000/-, Rs.15,00,000/- and Crl.R.P.2875/2008 & connected cases - 2 - Rs.25,00,000/- towards payment of installments, drawn in their account maintained in Panampilly Nagar Branch of Federal Bank. Cheques presented for encashment were dishonoured for want of sufficient funds under Exhibits P3, P10, P17, P24, P31 and P38 dishonoured memos. In spite of Exhibits P5, P12, P19, P26, P33 and P40 notices demanding the amount covered by the dishonoured cheques, the accused did not pay the amount. Thus accused committed the offence under Section 138 of Negotiable Instruments Act. These complaints were originally filed before the Chief Judicial Magistrate, Thiruvananthapuram, which were taken cognizance and transferred to Judicial First Class Magistrate, Thiruvananthapuram as C.C.Nos.23/2001, 24/2001, 25/2001, 5/2003, 6/2003 and 7/2003. Accused persons pleaded not guilty. On the evidence of PW1, Exhibits P1 to P44, DW1, Exhibits D1 and D2 learned Magistrate found the accused guilty. They were convicted and sentenced in each of the cases. Crl.R.P.2875/2008 & connected cases - 3 - 2. All accused challenged the conviction and sentence before Additional Sessions Court, Thiruvananthapuram in Crl.Appeal Nos.539, 540, 541, 542, 543 and 544 of 2003. Learned Additional Sessions Judge on re-appreciation of the evidence confirmed the conviction and modified the sentence. First revision petitioner was sentenced to pay a fine of Rs.5,000/- in each of the cases. Second petitioner and third accused were sentenced to undergo simple imprisonment for one year each in each of the cases. These revision petitions are filed by the accused Nos.1 and 2 challenging the conviction and sentence. Third accused has not filed any revision petition. 3. Learned counsel appearing for the revision petitioners and the learned counsel appearing for the first respondent were heard. Crl.R.P.2875/2008 & connected cases - 4 - 4. Learned counsel appearing for the revision petitioners did not challenge the conviction and submitted that subsequent to the conviction, revision petitioners paid more than Rs.1,92,73,370/- and thereafter, Rs.6,00,000/- was also paid. It was submitted that the recovery proceedings is pending against the accused in O.A.No.43/2001 before the Recovery Officer of Debt Recovery Tribunal and in such circumstances, sentence may be modified. 5. Learned counsel appearing for the first respondent filed a statement admitting the receipt of Rs.1,92,73,370/-, but contended that the amount due to the first respondent is more than that the amount paid and there is no reason to interfere the sentence. Learned counsel appearing for first respondent argued that Section 138 of Negotiable Instruments Act provides for a sentence of imprisonment for two years and also fine, which could be double the amount covered by the dishonoured cheques and in such circumstances, no Crl.R.P.2875/2008 & connected cases - 5 - interference is warranted. 5. It cannot be disputed that by paying the amount covered by the dishonoured cheques, conviction under Section 138 of Negotiable Instruments Act cannot be wiped out. But the fact that the amount covered by the dishonoured cheques, subsequent to the conviction is definitely a matter which is to be considered while awarding the sentence. Learned Sessions Judge modified the sentence to a fine of Rs.5,000/- as against the first revision petitioner company and simple imprisonment for one year as against second revision petitioner. Considering the fact that more than the amount covered by the dishonoured cheques were paid by the revision petitioners, interest of justice will be met, if sentence against second revision petitioner is modified to a fine with a direction to pay the fine on realization to first respondent as compensation under Section 357(1) of the Code of Criminal Procedure. Crl.R.P.2875/2008 & connected cases - 6 - Hence, these revision petitions are allowed in part. Conviction of the petitioners for the offence under Section 138 of Negotiable Instruments Act is confirmed. So also sentence awarded as against the first petitioner is also confirmed. Sentence as against the second petitioner is modified to a fine of Rs.10,000/- and in default to undergo simple imprisonment for two months in each of the cases. On realization of the fine, it is to be paid to the first respondent as compensation under Section 357(1)(b) of the Code of Criminal Procedure. M. SASIDHARAN NAMBIAR, JUDGE skr