CRL.R.P. No. 1172 of 2011 (M/S Parappurath Chitties (P) Ltd. & M.R. Radhakrishnan v. Everest Chammany & State of Kerala)

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 Crl.Rev.Pet.No. 1172 of 2011() -----------------------------CRA.277/2010 of SESSIONS COURT,(ADHOC-1),, ERNALULAM. ERNAKULAM ST.3487/2008 of JFCM COURT-V, ERNAKULAM .................... REVN. PETITIONERS: APPELLANT/ACCUSED ## 1. M/S.PARAPPURATH CHITTIES (P) LTD., 40/7875, LAKSHMI BUIDINGS, PADMA JUNCTION, M.G.ROAD, KOCHI-35. ## 2. M.R.RADHAKRISHNAN, MANAGING DIRECTOR, M/S.PARAPPURATH CHITTIES (P) LTD., PARAPPURAM, KOTTAKANAL ROAD, WEST END LISSIE HOSPITAL ROAD, KALOOR, ERNAKULAM. BY ADV. SRI.T.N.HAREENDRAN SRI.T.H.ARUN KUMAR ## RESPONDENTS: COMPLAINANT ## 1. EVEREST CHAMMANY, S/O.FRANCIS CHAMMANY, AGED 70 YEARS, CHAMMANI ROAD, KALOOR, KOCHI-17. ## 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. R2 BY P.P. SMT. REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/05/2011, THE COURT ON THE SAME DAY PASSED THE ## **V.K.MOHANAN, J.** ## **-----------------------------------------Crl.R.P. No. 1172 of 2011 ----------------------------------------** Dated the 30th Day of May, 2011 ## **ORDER** The challenge in this Crl.R.P is against the conviction and sentence imposed against the revision petitioners under Section 138 of the N.I.Act. 2. The learned counsel for the revision petitioners submitted that the complainant has miserably failed to establish the transaction. According to the counsel, though the trial court has found that simply because of the presence of the signature of the accused in the cheque, it will not amount to execution of the cheque, but on flimsy ground, the trial court convicted the accused which was confirmed by the appellate court. According to the learned counsel, the petitioners have effectively denied the transaction and the execution of the cheque in question. In order to substantiate the above contention, the learned counsel pointed out that, in Ext.P7 pass book, the date of the commencement of the chitty is shown as 23.11.2006 but the payment is shown as 31.7.2006 and therefore, the CRL.R.P 1172/11 **-:2:-** proof, i.e. Ext.P7 produced by the complainant to claim the transaction cannot be relied and believed. Thus according to the learned counsel, the findings of the trial court as well as the appellate court are without any basis and therefore, the same are liable to be set aside. 3. I am unable to sustain the above contention. Admittedly, the Ist petitioner is a chitty company and the 2[nd] petitioner is the Managing Director of the Ist petitioner and the complainant is one of the subscribers of the chitty conducted by the petitioners. There is no convincing explanation as to how Ext.P1 cheque reached in the possession of the complainant. It is true, the revision petitioners have got a case that they used to purchase paint from the shop of the complainant and towards the said transaction, the petitioners used to issue cheque in advance as security. But it is relevant to note that the revision petitioners have not produced any evidence to substantiate the above version. In the absence of any evidence, this Court is not in a position to interfere with the findings of the trial court as well as the appellate court with CRL.R.P 1172/11 **-:3:-** respect to the contention raised by the defence regarding the cheque in question. The trial court as well as the appellate court has found that the revision petitioners have miserably failed to send a reply to the notice received by them which issued by the complainant in terms of Section 138 of the NI Act. No evidence is adduced regarding the transaction between the revision petitioners and the complainant with respect to the purchase of paint from the shop of the complainant. The trial court has assigned several reasons to reject the version of the revision petitioners which according to me , appears to be sound and legal. Thus it can be seen that the complainant has adduced evidence in terms of his allegation in the complaint. But the revision petitioners have miserably failed to challenge such evidence and case of the complainant effectively. 4. With respect to the contention raised by the revision petitioners connected with Ext.P7 pass book, the trial court has rejected the same stating that, to avoid burden, the complainant used to pay the amount daily. CRL.R.P 1172/11 **-:4:-** The trial court has found that on a perusal of Ext.P7 it is clear that the chitty was commenced on 23.7.2006 and the payment was on 31.7.2006 and it is further observed that the mode of payment was on daily basis and in order to avoid burden the complainant paid amount on daily even before the commencement of kuri. According to me, the above reasoning appears to be correct and sound. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent findings of the trial court and the appellate court and accordingly, the conviction recorded by the courts below is confirmed. 5. Regarding the sentence, the learned counsel submitted that the same is unreasonable and exorbitant. It is also the submission of the learned counsel that, if this court is not inclined to interfere with the order of conviction, breathing time may be granted to the revision petitioners to compensate the complainant. According to me, the above submission requires positive consideration. 6. In this juncture it is relevant to note that the cheque in question is dated 11.9.2008, that too for an CRL.R.P 1172/11 ## **-:5:-** amount of Rs.46,000/-. In the light of the findings of the courts below which approved by this court, an amount of Rs.46,000/- which belongs to the complainant is with the revision petitioners for the last three years. It is also relevant to note that in in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Having regard to the facts and circumstances indicated above and the above settled legal position, I am of the view that the sentence imposed on the revision petitioners requires reconsideration. and while granting some time to the revision petitioners to compensate the complainant, the interest of the complaint has also to be protected. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioners under section 138 of the NI Act recorded by the courts below. Accordingly, the sentence of imprisonment ordered against the 2[nd] revision petitioner by the trial court and confirmed by the appellate court is modified and reduced the same into one day CRL.R.P 1172/11 **-:6:-** imprisonment, i.e. till the rising of the court. As the substantial sentence is reduced substantially, the order to pay compensation is set aside and the 2[nd] petitioner is sentenced to pay a fine also. Accordingly, while the sentence of fine imposed against the Ist petitioner is confirmed, the 2[nd] revision petitioner/2[nd] accused is sentenced to pay a fine of Rs.52,900/-, within three months from today and in default, he is directed to undergo simple imprisonment for a period of three months. Thus, the 2[nd] revision petitioner is directed to appear before the trial court on **31[st] August, 2011** to receive the modified sentence of imprisonment and to pay the fine amount as fixed above on the date of his appearance. If there is any default on the part of the 2[nd] revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the 2[nd] revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. On realisation of the fine amount, a sum of Rs.55,000/- shall be give to the complainant as compensation under section 357(1)(b) CRL.R.P 1172/11 ## **-:7:-** Cr.P.C. and the remaining amount of Rs.2900/- shall be deposited in the state ex chequer. Coercive steps, if any, pending against him shall be deferred till 31[st] August, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-