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Managing Partner vs Meera Gopalan on 22 October, 2010

Kerala High Court
Managing Partner vs Meera Gopalan on 22 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3110 of 2004()


1. MANAGING PARTNER, REP. FOR DHANALUXMI
                      ...  Petitioner
2. A.V.SISUPALAN, S/O.VELAYUDHAN,

                        Vs



1. MEERA GOPALAN, W./O.GOPALAN,
                       ...       Respondent

2. STATE OF KERALA.

                For Petitioner  :SRI.M.NARENDRA KUMAR

                For Respondent  :SRI.RAJIT

The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :22/10/2010

 O R D E R
                        P.Q.BARKATH ALI J.
                           -------------------------
                      Crl.R.P. No. 3110 of 2004
                     -------------------------------------
              Dated this the 22ndday of October, 2010.

                                  ORDER

Revision petitioners 1 and 2 are the accused persons in ST

Case No.2980/1999 on the file of the Judicial First Class

Magistrate Court, Kodungallur and appellants in Crl.Appeal

No.173/2003 the court of the Addl. Sessions(Adhoc) Judge, Fast

Track Court No.I, Thrissur.

2. The first revision petitioner is the Dhanaluxmi Finance

Corporation, Nattika and the second revision petitioner is the

Managing partner. They were convicted under Section 138 of the

Negotiable Instruments Act and second accused was sentenced to

undergo simple imprisonment for three months and they were

directed to pay a compensation of Rs.75,000/- to the complainant

in default, the second accused was ordered to undergo simple

imprisonment for three months by the learned Magistrate by

judgment dated February 19, 2003. On appeal by the revision

petitioners/accused persons, the lower appellate court by

judgment dated August 6, 2004 confirmed their conviction, but

modified their sentence to the effect that the second accused was

Crl.R.P. No. 3110 of 2004 2

sentenced to undergo imprisonment till the rising of the court.

The order to pay the compensation was maintained and the

default sentence was reduced to simple imprisonment for two

months. The revision petitioners/accused persons have now come

up in revision challenging their conviction and sentence.

3. The case of the revision, first respondent/complainant

as testified by her as PW1 before the trial court and as detailed in

the complaint in brief is thus:

The second accused as the managing partner of the first

accused Corporation, issued the cheque Ext.P1 dated January 30,

1999 for Rs.68,000/- in favour of the complainant for the

amount due to the complainant from the accused persons. The

complainant presented the said cheque for collection, which was

returned dishonoured for want of sufficiency of funds in the

account maintained by the accused persons. In spite of the

notice, Ext.P3 dated February 2, 1999, the accused persons

evaded the receipt of the notice and did not re-pay the amount.

Therefore, the complainant filed the complaint before the trial

Court under Section 138 of the Negotiable Instruments Act.

Crl.R.P. No. 3110 of 2004 3

4. On receipt of the complaint, the learned Magistrate had

recorded the sworn statement of the complainant and took

cognizance of the offence. The second accused on appearance

before the trial court pleaded not guilty to a charge under Section

138 of the Negotiable Instruments Act on behalf of himself and

on behalf of the first accused. The complainant was examined as

PW1 and Exts.P1 to P9 were marked on the side of the

complainant. When questioned under Section 313 of Cr.P.C., the

second accused denied the entire transaction. DW1 was

examined and Exts. D1 and D2 were marked on the side of the

accused.

5. The learned Magistrate on an appreciation of the

evidence found that the accused persons have committed the

offence punishable under Section 138 of the Negotiable

Instruments Act, convicted them thereunder and sentenced them

as aforesaid. The lower appellate court confirmed their

conviction, but modified the sentence as mentioned above. The

accused persons have come up in revision challenging their

Crl.R.P. No. 3110 of 2004 4

conviction and sentence.

6. Heard the counsel for the revision petitioners/accused

and the counsel for the revision first respondent/complainant.

7. The following points arise for consideration:

1. Whether the conviction of the revision
petitioners under Section 138 of the
Negotiable Instruments Act rendered by the
trial court which is confirmed in appeal can
be sustained ?

2. Whether the sentence imposed is excessive
or unduly harsh ?

Point No.1:-

8. Complainant as PW1 testified in a convincing manner

before the trial court regarding the transaction. Nothing was

brought out in his cross-examination to discredit his evidence.

Further his evidence is supported to Exts. P1 to P9.

9. The specific case of the accused when questioned under

Section 313 of the Cr.P.C. by the learned Magistrate was that

when first accused’s firm was collapsed, the cheques were taken

by some persons and the complainant misusing one of the

cheques has created by Ext.P2. No satisfactory evidence was

Crl.R.P. No. 3110 of 2004 5

adduced by the accused persons to prove their case. The

evidence of DW1, the manager of the bank also does not help the

accused persons to prove the above case of the accused.

Therefore, I am of the view that the learned magistrate as well as

the learned Sessions Judge is perfectly justified in accepting the

evidence of the complainant and finding that the accused persons

have committed the offence punishable under Section 138 of the

Negotiable Instruments Act and convicting them thereunder.

Therefore, I confirm the conviction of the accused persons under

Section 138 of the Negotiable Instruments Act.

Point No.2:

10. As regards the sentence, the learned Magistrate

sentenced the second accused to undergo simple imprisonment

for three months and to pay a compensation of Rs.75,000/- to

the complainant and in default to undergo simple imprisonment

for three months. The appellate court while maintaining the order

of payment of compensation, reduced the substantial sentence to

till the rising of the court and fixed the default sentence as simple

imprisonment for two months, I find no special reason to reduce

Crl.R.P. No. 3110 of 2004 6

the sentence.

In the result, revision petition is dismissed. The conviction

of the revision petitioner under Section 138 of the Negotiable

Instruments Act and the sentence imposed by the learned

Magistrate as modified by the lower appellate court are

confirmed. The direction to pay compensation is also sustained.

Two months’ time is granted to the revision petitioner to pay the

compensation. The second revision petitioner shall surrender

before the learned Magistrate on or before November, 15, 2010

to suffer the sentence. Bail bonds of the accused persons are

cancelled.

P.Q.BARKATH ALI, JUDGE

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