IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 623 of 2005() ----------------------------- CRA.442/2004 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.2205/2001 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONERS/APPELLANT/ACCUSED: -------------------------------------------------------------- 1. M/S.PEEJAY PROPERTY DEVELOPMENT, SWARAJ MAZDA BUILDING, 29/579, S.A. ROAD, KOCHI - 20, REP. BY P.J. VARGHESE. 2. P.J.VARGHESE, MANAGING PARTNER, M/S. PEEJAY PROPERTY DEVELOPMENT, CENTURY TERRACE, FLAT NO.72, ELENJICKAL LANE, KADAVANTHARA. BY ADV. SMT.A.R.USHA RESPONDENTS/COMPLAINANT: ------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. 2. PRADEEP M.P., PROPRIETOR, M/S. MODERN PLUMBING & SANITARY WORKS, DOOR NO.XIII/1200, ERNAKULAM. R1 BY PUBLIC PROSECUTOR SMT. S. HYMA. R2 BY ADVS. SRI.V.M.KURIAN SRI.A.V.THOMAS SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SMT.TULASI PANICKER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2011 ALONG WITH CRRP NO. 2784 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Scl. P.S. GOPINATHAN, J. ---------------------------------------------------------- Crl.Rev.Pet.No. 623 of 2005 & Crl.Rev.Pet.No. 2784 of 2006 ---------------------------------------------------------- Dated this the 7th day of December, 2011 COMMON ORDER These revisions are preferred assailing the judgment in Criminal Appeal No.442/2004 on the file of the Sessions Judge, (Ad hoc-I), Ernakulam. The revision petitioner in Criminal Revision Petition.No.623/2005 is the accused in C.C.No.2205/2001 on the file of Judicial Magistrate of First Class-I, Kochi. Petitioner in the other revision petition is the complainant (hereinafter, parties are referred to as the 'complainant' and 'accused'). The complainant prosecuted the accused before the Trial Court alleging offence under Section 138 of the Negotiable Instruments Act with a plea that the accused owed a sum of Rs.4,50,000/- to the complainant and in discharge of the same, Ext.P1 cheque dated 20/6/2000, drawn on Centurion Bank Limited was issued and that when presented for collection, Ext.P1 was dishonoured for insufficiency of funds. Despite the Crl.Rev.Pet.No. 623 of 2005 & Crl.Rev.Pet.No. 2784 of 2006 2 acknowledgment of notice demanding discharge, the liability was not discharged. 2. The accused pleaded not guilty. Therefore, they were sent for trial. Complainant was examined as PW1 and Ext.P1 to P7 were marked. On the side of the accused, DW1 and 2 were examined and D1 to D3 were marked. On appraisal of the evidence, the learned Magistrate arrived at a conclusion of guilt. Consequently, the accused were convicted and the first accused firm was sentenced to a fine of Rs.5,000/- The second accused was sentenced to simple imprisonment for 6 months with a direction to pay Rs.4,50,000/- to the complainant as compensation. In appeal, the learned Additional Sessions Judge though confirmed the conviction, substantive sentence awarded to the second accused was reduced to imprisonment till the rising of Court. The compensation amount was reduced to Rs.3,00,000/- from Rs.4,50,000/-. 3. Assailing the conviction and sentence as modified in appeal, the accused has filed the revision petition. Assailing inadequacy of the modified sentence, the complainant has Crl.Rev.Pet.No. 623 of 2005 & Crl.Rev.Pet.No. 2784 of 2006 3 also filed the revision. 4. Hearing the learned counsel for the complainant and perusing the judgment and evidence on record, I find that though, the accused had denied the charge, when questioned under Section 313 of the Code of the Criminal Procedure, the plea that was raised is that out of the amount covered by the cheque, Rs.3,37,000/- was paid by several instalments and only the balance Rs.1,17,000/- is remaining to be paid. It is in support of the plea of discharge, DW1 and 3 were examined and D1 series to D3 series were marked. In the light of the defence of the accused, going by the evidence of PW1 supported by Ext.P1 and P2, I find that complainant had succeeded to establish that a sum of Rs.4,50,000/- was due in discharge of which Ext.P1 cheque was issued. When presented for collection, as evidenced by Ext.P2 dishounour memo, the cheque was dishonoured for insufficient funds. Evidenced by Ext.P3 to P6, notice demanding discharge was caused to both accused and it was acknowledged by them. Admittedly, there is no full discharge of the liability. Partial discharge of the liability Crl.Rev.Pet.No. 623 of 2005 & Crl.Rev.Pet.No. 2784 of 2006 4 would not absolve the accused from prosecution. Therefore, the complainant was justified in launching the prosecution. DW1 is the second accused who represents the first accused firm. Ext.D1 series were relied on as the vouchers for the partial discharge. DW2, the supervisor of the complainant was examined to prove Ext.D1 series. But DW2 did not support. DW3 is the accountant of the accused. He was also examined to prove the discharge. The Courts below did not believe DW3, stating that he is an interested witness. 5. Scanning the evidence and the judgment impugned, I find that the DWs 1 to 3 were rightly disbelieved by the courts below. There is no error or impropriety or illegality committed by the Courts below in appraising the defence evidence regarding discharge. Therefore, I find that the Courts below are justified in rejecting the plea of partial discharge. Such being the evidence on record, I find that the conviction under challenge is based on cogent evidence and requires no interference. Crl.Rev.Pet.No. 623 of 2005 & Crl.Rev.Pet.No. 2784 of 2006 5 6. The appellate Court has no justifying reason for reducing the sentence to imprisonment till the rising of Court. So also having found that the plea of discharge is not sustainable, there is no justification for reducing the compensation. I find that the complainant is entitled to get the cheque amount as compensation though I find that no enhancement for substantive sentence is warranted in the peculiar circumstance of the case . In the result, Criminal Revision Petition No.623/2005 is dismissed as devoid of merits. While allowing Criminal Revision Petition No.2784/2006, the compensation amount payable by the accused to the complainant is restored to the amount awarded by the Trial Court. In default of payment of compensation, the second accused shall undergo simple imprisonment for six months. Trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE su