IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4206 of 2008()
1. SREE MOOKAMBIKA FLOUR MILLS,
... Petitioner
2. G.VIVEKANANDAN, AGED 58 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. K.B.RASHEED MATHER, KAKKANATTIL HOUSE,
For Petitioner :SRI.K.SHRIHARI RAO
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/01/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
Crl.R.P. NO. 4206 OF 2008
===========================
Dated this the 1st day of January,2009
ORDER
Revision petitioners are accused 1 and 2 in
C.C.621/2003 on the file of Judicial First Class
Magistrate-I, Aluva. Second respondent is the
complainant. Second respondent lodged the
complaint against the first revision petitioner,
the firm and the second revision petitioner its
Managing Partner and two other partners of the
firm alleging that they committed the offence under
section 138 of Negotiable Instruments Act. Accused
pleaded not guilty. Learned Magistrate on the
evidence of PW1 and Exts.P1 to P7 DW1 and Exts.D1
and D2 found accused 3 and 4 not guilty and
acquitted them. Revision petitioners were
convicted for the offence under section 138 of
Negotiable Instruments Act. They were sentenced to
simple imprisonment for one year, without taking
note of the fact that first revision petitioner is
CRRP4206/2008 2
only a firm. Petitioners challenged the conviction
and sentence before Additional Sessions Court,
North Paravur in Crl.A.776/2007. Learned
Additional Sessions Judge on reappreciation of
evidence confirmed the conviction. But sentence
was modified to a fine of Rs.1,25,000/- as against
the first revision petitioner firm and simple
imprisonment for three months and a fine of
Rs.10,000/- and in default simple imprisonment for
two months as against second revision petitioner
with a direction to pay Rs.1,25,000/- on
realisation to second respondent as compensation.
Revision is filed challenging the conviction and
sentence.
2. Learned counsel appearing for the revision
petitioners was heard.
3. Learned counsel, in view of the evidence on
record and the concurrent findings of fact did not
challenge the conviction but sought modification of
the sentence. It was submitted that considering
the fine awarded as against firm the substantive
CRRP4206/2008 3
sentence as against second revision petitioner may
be reduced as well as the fine.
4. On going through the judgments of the
courts below, I find no reason to interfere with
the conviction. Evidence establish that in
discharge of the liability of first revision
petitioner firm, second revision petitioner being
the Managing Partner issued the cheque which was
dishonoured for want of sufficient funds and second
respondent had complied with all the statutory
formalities provided under section 138 and 142 of
Negotiable Instruments Act. Conviction of revision
petitioners in such circumstance, for the offence
under section 138 of Negotiable Instruments Act, is
perfectly legal.
5. Then the only question is regarding the
sentence. Learned Additional Sessions Judge
modified the sentence to a fine for the amount
covered by the dishonoured cheque as against the
firm and simple imprisonment for three months in
addition to a fine of Rs.10,000/- as against the
CRRP4206/2008 4
Managing Partner the second revision petitioner.
Considering the entire facts and circumstances of
the case, interest of justice will be met, if the
sentence is modified, reducing the substantive
sentence to imprisonment till rising of court. So
long as the sentence is not varied or modified
against the interest of second respondent, it is
not necessary to issue notice to second respondent.
As per the modified sentence awarded by Sessions
Judge second respondent is to get a compensation
of Rs.1,25,000/- which was the amount covered by
the dishonoured cheque. In such circumstance, the
sentence is modified as follows:- First revision
petitioner is sentenced to a fine of Rs.10,000/-.
Second revision petitioner is sentenced to
imprisonment till rising of court in addition to a
fine of Rs.1,20,000/- and in default simple
imprisonment for one month. On realisation of fine
Rs.1,25,000/- to be paid to second respondent as
compensation under section 357(1) of the Code of
Criminal Procedure.
CRRP4206/2008 5
Revision is allowed in part. Conviction of
revision petitioners for the offence under section
138 of Negotiable Instruments Act is confirmed.
Sentence is modified. First revision
petitioner/first accused is sentenced to a fine of
Rs.10,000/-. Second revision petitioner/second
accused is sentenced to imprisonment till rising
of court and a fine of Rs.1,20,000/- and in default
simple imprisonment for one month. On realisation
of fine, Rs.1,25,000/- to be paid to second
respondent as compensation under section 357(1) of
Code of Criminal Procedure. Revision petitioner is
granted four months time to pay the fine. Second
revision petitioner is directed to appear before
the Magistrate on 2.5.2009.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
———————
W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006