High Court Kerala High Court

Babu Thomas vs Hudco on 28 January, 2009

Kerala High Court
Babu Thomas vs Hudco on 28 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 219 of 2009()


1. BABU THOMAS, EXECTUVE DIRECTOR,
                      ...  Petitioner

                        Vs



1. HUDCO, KERALA STATE HOUSING BOARD,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SMT.M.A.ZOHRA

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :28/01/2009

 O R D E R
                 M.SASIDHARAN NAMBIAR,J.

          ---------------------------------------------------------
            CRL.R.P.NOS.219/09, 220/09,221/09,
                    222/09,223/09 & 224/09
          ---------------------------------------------------------

                   Dated 28th January 2009


                              O R D E R

Revision petitioner is the third accused

and first respondent the complainant in C.C.23/2001,

24/2001, 25/2001, 5/2003, 6/2003 and 7/2003 on the

file of Judicial First Class Magistrate-IV,

Thiruvananthapuram. First respondent is a Government

company and first accused a private limited company.

Third accused and second accused are respectively the

Director and Managing Director of the Company. Company

availed a loan of Rs.One crore from first respondent

agreeing to repay the same with interest. Towards

repayment of the amount Exts.P1, P8, P15,P22, P29 and

P36 cheques respectively for Rs.25,00,000/-,

25,00,000/-, 25,00,000/-, 25,00,000/-, 15,00,000/- and

25,00,000/- were issued drawn in the account of the

company and maintained in Panavila Branch of Federal

Bank. All the cheques were dishonoured. In spite of

the notice issued to the accused as provided under

CRL.R.P.NOS.219/09, 220/09,221/09,
222/09,223/09 & 224/09
2

Section 138(b) of Negotiable Instruments Act they did

not pay. Alleging that the three accused committed

offence under Section 138 of Negotiable Instruments Act ,

complaints were filed which were taken cognizance by the

Magistrate. All the accused pleaded not guilty. All the

accused together defended the case. All of them were

convicted. They together challenged the conviction and

sentence before Additional Sessions court,

Thiruvananthapuram in Crl.A.Nos.539/2003,540/2003,

541/2003, 542/2003, 543/2003 and 544/2003. Learned

Additional Sessions Judge confirmed the conviction and

modified the sentence. Accused 1 and 2 together

challenged the conviction and sentence before this court

in Crl.R.P.2875/2008, 2876/2008, 2881/2008, 2886/2008

2887/2008 and 2890/2008. Revision petitioner did not

join the other accused while challenging the conviction

in those revision petitions. As per order dated

18/11/2008 revision petitions were disposed confirming

the conviction but modifying the sentence as against

second accused to a fine of Rs.10,000/- each and in

default simple imprisonment for two months in each in

all the cases. Third accused now filed the revision

petitions challenging conviction and sentence.

CRL.R.P.NOS.219/09, 220/09,221/09,
222/09,223/09 & 224/09
3

2. Learned counsel appearing for revision

petitioner and first respondent were heard.

3. Learned counsel submitted that revision

petitioner was kicked out of the company by the Managing

Director and proceedings were initiated for realisation

of the amount due from the company against the properties

of the revision petitioner and in such circumstances

sentence may be modified as has been done in the revision

petitions filed by other accused. Learned counsel

appearing for first respondent pointed out that

conviction was already confirmed by this court in the

revision petitions filed by the other accused and there

is no reason to interfere with the conviction.

4. In view of the confirmation of the conviction

and modification of the sentence as against second

accused Managing Director of the company, while

confirming the conviction revision petitioner is entitled

to get the modification of the sentence as has been done

in the other revisions filed by second accused.

5. In such circumstances, all revisions are to be

allowed in part. Conviction of revision petitioner for

the offence under Section 138 of Negotiable Instruments

Act is confirmed. Sentence as against the revision

CRL.R.P.NOS.219/09, 220/09,221/09,
222/09,223/09 & 224/09
4

petitioner in all the cases is modified to a fine of

Rs.10,000/- each and in default simple imprisonment for

two months in each. On realisation of fine, it is to be

paid to first respondent as compensation under Section

357(1)(b) of Code of Criminal Procedure. Revision

petitioner is granted three time to pay the fine.

M.SASIDHARAN NAMBIAR,
JUDGE.

uj.