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