IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 469 of 2003(B)
1. M/S. S.S.INDUSTRIES AND ENTERPRISES,
... Petitioner
2. A.R.SANTHANAKRISHNAN, MANAGING PARTNER,
Vs
1. M/S. OIL PALM INDIA LTD.,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.P.ASHOK KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :24/03/2009
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.R.P.No. 469 of 2003
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Dated this the 24th day of March, 2009
O R D E R
This revision petition is filed by accused 1 and 2 in
C.C.No.103 of 1999 on the file of the Chief Judicial
Magistrate Court, Kottayam. The said complaint was filed
alleging commission of the offence punishable under
Section 138 of the N.I. Act.
2. The case of the complainant is that the first
accused Company purchased 20,000 oil palm sprout from
the complainant and towards the cost of the same, issued a
cheque dt.21.12.1998. The cheque was presented by the
complainant through their accounts in the State Bank of
Travancore, Kottayam branch, but was bounced for
insufficiency of funds. The complainant issued a lawyer
notice, intimating the dishonour of the cheque and
demanding payment. But the company has not discharged
the liability. Accused Nos. 2 to 4 are responsible officers
Crl.R.P.No. 469 of 2003
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of the accused company. Pursuant to the summons, accused 1
and 2 appeared before the court. Accused 3 and 4 absconded
and the case against them was split up. When particulars of the
offence were read over to the accused, they pleaded not guilty.
3. The complainant was examined as PW1 and Exts.P1 to
P11 were marked. The second accused was questioned under
Section 313 Cr.P.C., who denied the allegations raised. From
the defence side, a witness list was filed. Though steps were
taken, nobody could be examined.
4. The learned C.J.M., Kottayam, on considering the
evidence, found accused 1 and 2 guilty under Section 138 of
the N.I. Act and they were convicted and sentenced. The
second accused is sentenced to undergo simple imprisonment
for three months. The first accused is sentenced to pay a fine of
Rs.2,20,000/-, which will be recovered from the assets of the
company and on recovery, Rs.2,00,000/- will be paid to the
complainant as compensation. The case against accused 3 and 4
was refiled.
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5. Against that conviction and sentence, accused 1 and 2
filed Crl.A.No. 420 of 2001 before the Sessions Court,
Kottayam, which was dismissed, confirming the conviction and
sentence. Against that judgment accused 1 and 2 filed this
Revision Petition.
6. Heard the learned counsel for the revision petitioners,
the learned counsel for the first respondent and the learned
Public Prosecutor.
7. The learned counsel for the revision petitioners
submitted that the petitioners are not challenging the conviction
of accused 1 and 2 under Section 138 of the N.I. Act and that the
only prayer of the petitioners is to show leniency in awarding
the sentence. In the decision reported in George v.
Kamarudeen (2007 (1) KLT 759), it was held that a substantive
sentence of imprisonment till rising of the court would be
sufficient in the case of offence under Section 138 of the Act to
meet the ends of justice, particularly in view of the fact that
adequate compensation has been awarded. In view of the
Crl.R.P.No. 469 of 2003
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principle laid down in the above decision, I am of the view that
the ends of justice would be met by sentencing the second
accused to undergo imprisonment till rising of the court and by
confirming the sentence to pay fine of Rs.2,20,000/- by the first
accused.
8. In the result, this Crl.R.P. is allowed in part. The
conviction of accused 1 and 2 in C.C. 103 of 1999 on the file of
the Chief Judicial Magistrate Court, Kottayam under Section 138
of the N.I. Act is confirmed. The sentence of the second accused
to undergo S.I. for a period of three months is reduced and he is
sentenced to undergo imprisonment till rising of the court. The
sentence to pay a fine of Rs.2,20,000/- by the first accused is
confirmed.
9. The learned counsel for the revision petitioners submits
that five months’ time may be granted to the revision petitioners
to pay the fine. In the facts and circumstances of the case, five
months’ time is granted to the revision petitioners to pay the fine.
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The Chief Judicial Magistrate, Kottayam, is directed to execute
the modified sentence.
(M.L.JOSEPH FRANCIS)
Judge
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