IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 604 of 2003()
1. THOMAS PARAPPALLY,
... Petitioner
Vs
1. M/S. JELITTA,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.M.C.GOPI
For Respondent :SRI.MATHEWS J.NEDUMPARA
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :15/12/2009
O R D E R
C.T. RAVIKUMAR, J.
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CRL. R.P. NO. 604 OF 2003
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Dated this the 15th day of December, 2009
O R D E R
The revision petitioner was the first accused in C.C.No.968/98 on the
file of Court of the Judicial First Class Magistrate-III, Kottayam and was the
appellant in Crl.Appeal No.269 of 2001 on the file of the Court of Additional
Sessions Judge, Kottayam. The learned Magistrate convicted the petitioner
under Section 138 of the Negotiable Instruments Act and sentenced to
undergo simple imprisonment for three months and the conviction and
sentence were conformed in the aforesaid Cr.Appeal by the learned Sessions
Judge. The case against the second accused in C.C.No.968 of 1998 was split
up and refiled.
2. The case of the complainant was that he was doing business in
advertising and in the transaction between himself and the petitioner, the
petitioner became his debtor. In discharge of the said liability incurred, the
petitioner/1st accused has issued a cheque in his favour for Rs.25489.75
drawn on Federal Bank Ltd, Thrissur Main Branch. The said cheque was
dishonoured when presented for collection on the ground of insufficiency of
Crl.R.P. NO.604 of 2003 2
funds. Thereafter, the complainant had issued statutory notice within the
statutorily prescribed period to the petitioner. However, the petitioner had
failed to repay the amount even within the statutorily permitted period.
Thereupon, the petitioner had preferred complaint against the petitioner
and that culminated in petitioner’s conviction and sentence as mentioned
above.
3. The Trial Court appreciated the evidence and found the petitioner
guilty under Section 138 of the Negotiable Instruments Act and thereupon
convicted him thereunder and sentenced him as aforesaid. He had
unsuccessfully filed an appeal against the judgment in C.C.No.968 of 1998.
Therefore, the point for consideration in this case is whether the conviction of
the petitioner/1st accused under Section 138 of the Negotiable Instruments Act
by the Trial Court in C.C.No.968 of 1998 which was conformed in Crl.Appeal
No.269 of 2001 can be sustained. Whether the sentence imposed on him is
excessive or unduly harsh is also a point for consideration.
4. The complainant was examined as PW1 and on his side Exts.P1
to P7 were marked. No witnesses were examined on behalf of the petitioner
and no documents were marked on his side. A scanning of the evidence oral
Crl.R.P. NO.604 of 2003 3
and documentary, would reveal that nothing was brought out to discredit the
verity of the evidence of PW1. The oral evidence adduced by PW1 is
supported by Exts.P1 to P7. In fact to defend his case, the petitioner/1st
accused took up the contention that he was the managing Director of Fresh
Coconut Products Ltd., Kaduppassery, Thrissur District and in his capacity as
the Managing Director of such company, he had signed in certain blank
cheques and kept them in the company. When the new Managing Director
had assumed charge, the said cheques were misused and that ultimately led to
the filing of the complaint against him. After appreciating the evidence, both
the Trial Court and the Appellate Court had rejected the said contention of the
petitioner. The petitioner was unable to adduce any evidence to substantiate
the said contention. In such circumstances, it cannot be said that the Trial
Court erred in believing evidence of PW1 regarding the transaction and
convicted and sentenced the petitioner. In the absence of any evidence on the
part of the petitioner/accused and at the same time in view of the oral and
documentary evidence adduced by the complainant, his version that the
cheque in question was issued to him in discharge of the liability cannot be
disbelieved. It is in evidence that the said cheque on its presentation was
dishonoured and the complainant had compiled with all statutory formalities
before filing a complaint against the petitioner. The petitioner did not have a
Crl.R.P. NO.604 of 2003 4
case that he had repaid the amount. The long and short of the discussions is
that the conviction of the revision petitioner under Section 138 of the N.I Act
is only to be confirmed. Therefore, I confirm the conviction of the revision
petitioner under Section 138 of the N.I Act.
5. The next point that arises for consideration is whether the
sentence imposed on him is excessive or unduly harsh. The petitioner is
a senile sexagenarian and therefore the sentence of imprisonment may be
avoided, it is submitted. The transaction was of the year 1998. Taking into
account of the said circumstances, I am of the view that a sentence till the
rising of the court and a fine of Rs.25490/- would meet the ends of justice. It
is submitted by the counsel for the petitioner that while admitting this case
there was a direction to pay 50% of the said amount and in compliance with
that he had remitted an amount of Rs.12745/- on 23.4.2003.
In the result, the revision petition is allowed in part. Conviction of the
revision petitioner under Section 138 of the N.I.Act is confirmed. He is
sentenced to undergo imprisonment till the rising of the court and to pay an
amount of Rs.25490/-, in default, to undergo simple imprisonment for three
months. The revision petitioner has already remitted an amount of Rs.12745/-
Crl.R.P. NO.604 of 2003 5
on 23.4.2003 and the same shall be adjusted against the fine amount. The
balance amount shall be paid by the revision petitioner within two months
from today. If the balance amount is remitted as ordered above, the entire fine
amount shall be paid to the complainant as compensation under Section 357
(1) of the Cr.P.C. His bail bonds are cancelled. The revision petitioner shall
surrender before the trial court on or before 31.1.2010 to receive the sentence.
It is made clear that if the amount of fine is remitted by the petitioner in terms
of the direction above, the 1st respondent/complainant is entitled to withdraw
that amount. The review petition is allowed to be above extent.
(C.T. RAVIKUMAR, JUDGE)
spc
Crl.R.P. NO.604 of 2003 6
C.T. RAVIKUMAR, J.
CRL. R.P. NO. 604/2003
O R D E R
15th December, 2009
Crl.R.P. NO.604 of 2003 7