M/S SAHAYADRI CONSTRUCTIONS v. RAJAN PILLAI & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936** **Crl.Rev.Pet.No. 1642 of 2014** **--------------------------------** **CRL.A 450/2011 of ADDL. DISTRICT & SESSIONS COURT, N. PARAVUR CC 218/2009 of J.F.C.M. - II, PERUMBAVOOR** **..........** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** **------------------------------------------------------------------** ## **1. M/S.SAHAYADRI CONSTRUCTIONS** - **REP.BY ITS MANAGING PARTNER MATHEW, S/O.VARGHESE VATTOLIL HOUSE, PARATHODE KARA, UDUMBANCHOLA TALUK SANTHENPARA POLICE STATION, IDUKKI DISTRICT** ## **2. MATHEW** - **S/O. VARGHESE, VATTOLIL HOUSE, PARATHODE KARA UDUMBANCHOLA TALUK, SANTHANPARA POLICE STATION IDUKKI DISTRICT** ## **3. SUNNY** - **S/O.GEORGE, VATTOLIL HOUSE, PARATHODE KARA UDUMBANCHOLA TALUK, SANTHANPARA POLICE STTION IDUKKI DISTRICT** **BY ADVS.SRI.ANIL GEORGE SRI.JOBY JACOB PULICKEKUDY** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **----------------------------------------------------------------** ## **1. RAJAN PILLAI** - **S/O.RAMAN PILLAI, PAZHAYAVEETTIL HOUSE, MANJAPRA KARA MANJAPRA VILLAGE** ## **2. STATE OF KERALA** - **REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.M.R.JAYAPRASAD R1 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R1 BY ADV. SRI.ANOOP.V.NAIR R2 BY PUBLIC PROSECUTOR SRI. GITHESH R.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **okb** ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **Crl. R.P. No.1642 of 2014** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 24[th] day of September, 2014 ## **ORDER** The revision petitioners herein are the revision petitioners in C.C. No.218/09 on the files of the Judicial First Class Magistrate's Court-II, Perumbavoor as well as the appellants in Crl. A.No.450/11 on the files of the Additional District and Sessions Court, N. Paravur. The 1[st] revision petitioner is a partnership firm and the revision petitioners 2 and 3 are partners of that firm. The above complaint was filed by the 1[st] respondent herein under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act') on the allegation that the 1[st] respondent was also a partner of the first accused partnership firm. During that time, a Hydraulic Hitachi Excavator was purchased for the first accused firm and for that purpose the 1[st ] respondent personally spent Rs.2 lakhs. When the 1[st] respondent retired from the first accused firm, in order to repay the said amount, a cheque for Rs.2 lakhs was issued to the 1[st] respondent, which was subsequently dishonoured and returned on presentation for the reason “account closed”. _**Crl.R.P.1642/14**_ **:2:** Though the 1[st ] respondent had caused to issue a lawyer notice, the revision petitioners sent a reply raising false contentions and they did not pay the cheque amount. Thus, they have committed the offence punishable under Section 138 of the N.I. Act. 2. The revision petitioners/accused entered appearance and denied the allegation against them. When the revision petitioners were questioned under Section 313 of the Cr.P.C., they denied the incriminating circumstances against them and stated that no amount was due to the 1[st] respondent. They contended that the office of the first revision petitioner firm was functioning in the building owned by the 1[st] respondent, who was a partner of the first accused firm, and that the 1[st] respondent somehow had obtained a signed cheque from the office and by misusing that cheque the complaint had been filed. To prove the execution and issuance of the cheque, the 1[st] respondent was examined as P.W.1 and another witness was examined as P.W.2. Exts.P1 to P10 and Ext.X1 were marked for the 1[st ] respondent. The Bank Manager was examined as D.W.1 and Exts.X1(a) to X6 were marked for the revision petitioners. After considering the evidence on record, the learned Magistrate found the revision petitioners guilty of the said _**Crl.R.P.1642/14**_ **:3:** offence and convicted them thereunder. The first revision petitioner firm was sentenced to pay a fine of Rs.5,000/- under Section 138 of the N.I. Act and in default, to recover the fine amount as per procedure under Section 421 of the Cr.P.C. The second and third revision petitioners were sentenced to undergo simple imprisonment for 3 months each and to pay a fine of Rs.2 lakhs jointly for the offence punishable under Section 138 of the N.I. Act and in default they shall undergo simple imprisonment for 3 months each. 3. Though the revision petitioners preferred the above appeal challenging the conviction and sentence, after re-appreciating the entire evidence on record, the learned Sessions Judge also confirmed the conviction, but modified the sentence with respect to the second and third revision petitioners. The second and third revision petitioners were sentenced to undergo simple imprisonment for one day till the rising of the Court and also to pay a fine of Rs.2 lakhs jointly and in default to undergo simple imprisonment for 3 months each for the offence punishable under Section 138 of the N.I. Act. The fine amount, if realised, shall be given to the 1[st] respondent as compensation under Section 357(1) of the Cr.P.C. The order against the first accused firm also stood confirmed. _**Crl.R.P.1642/14**_ **:4:** The legality and propriety of the concurrent findings of conviction are under challenge in this Revision Petition. 4. The learned counsel for the revision petitioners advanced arguments in support of the various contentions raised in this Revision Petition. The sum and substance of the arguments is as follows: The court below has miserably failed to appreciate the facts and evidence in its correct perspective. Besides, the Appellate Court failed to appreciate the fact that the third accused has not signed Ext.P1 cheque and that he has no authority to operate the bank account of the first accused firm. Therefore, the court below ought not have fastened him with the criminal liability under Section 138 of the N.I. Act. 5. Per contra, the learned counsel for the respondents advanced arguments to justify the concurrent findings of conviction and sentence. According to him, the Appellate Court has well re-appreciated the entire evidence on record in its correct perspective. 6. Going by the impugned order passed by the Appellate Court, in view of the arguments advanced by the learned counsel for the revision petitioners, it could be seen that all the arguments advanced at the Bar in this Revision Petition were raised before the Appellate Court and the Appellate Court has _**Crl.R.P.1642/14**_ **:5:** considered those arguments in its correct perspective. It is the case of the revision petitioners that the third accused is not a signatory in Ext.P1 cheque and the third accused had no authority to operate the bank account of the first accused firm. Therefore, he cannot be held liable for the offence alleged under Section 138 of the N.I. Act. But, after considering the evidence on record, the Appellate Court rightly observed that on a careful consideration of the evidence of both parties, it is to be noted that the third accused is a partner responsible for the conduct of the business of the first accused firm, which is pleaded and deposed by the complainant. According to Section 141 of the N.I. Act, a partner who was responsible to the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. 7. Ext.X5 is the partnership deed which reveals that all partners shall supervise and manage the different activities of the projects which were undertaken by the firm from time to time. Moreover, Ext.P5 also stipulated that all the partners are jointly and severally responsible for the maintenance of account books and administration of the business of the first accused firm. I am of the opinion that Ext.X5 partnership deed is sufficient to fasten the liability of all the accused as partners of _**Crl.R.P.1642/14**_ **:6:** the first accused firm. Moreover, it is also seen that Ext.P10 agreement is signed by the third accused. Therefore, as rightly observed by the Appellate Court, Ext.P10 further proves that the third accused is a partner who was responsible for the conduct of the business of the first accused firm and Ext.P1 cheque was issued with the knowledge of the third accused. Thus, I am of the opinion that the courts below rightly appreciated the evidence on record and arrived at just and proper findings. The learned counsel for the revision petitioners miserably failed to substantiate any kind of illegality or impropriety in any of the findings. I do not find any kind of perversity in the appreciation of evidence from which those findings have been arrived at. Thus, this Court is not inclined to exercise the revisional jurisdiction vested in it. Consequently, this Revision Petition is not liable to be admitted. 8. The learned counsel for the revision petitioners urged for some time to pay the fine amount imposed on the accused 2 and 3 by way of instalments. But, I am not inclined to grant instalment facility. The learned counsel further prayed for converting the fine to compensation payable directly to the complainant/1[st] respondent. The learned counsel for the 1[st] respondent also agreed for the same. _**Crl.R.P.1642/14**_ **:7:** 9. The Supreme Court, in the decision in **Kaushalya Devi Massand Vs. Roopkishore (AIR 2011 SC 2566),** held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in **Vijayan Vs. Baby (2011 (4) KLT 355)** , Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 10. Having regard to the above submission and also in view of the above decisions, the fine imposed on the revision petitioners 2 and 3 will stand converted to compensation payable directly to the 1[st ] respondent/complainant. Hence I am inclined to grant six months time to pay the compensation. Consequently, this Revision Petition is liable to be disposed of subject to the following terms: i. The sentence imposed on the first revision petitioner will stand confirmed. ii. The revision petitioners 2 and 3 shall undergo simple _**Crl.R.P.1642/14**_ **:8:** imprisonment for one day till rising of the court. iii. The revision petitioners 2 and 3 shall pay a compensation of Rs.2,00,000/- (Rupees Two lakhs only) jointly to the 1[st] respondent/complainant within a period of six months from today. If they had deposited any amount towards fine before the trial court, the same shall be given credit to and the balance alone needs to be paid to the complainant. In that event, the complainant is allowed to withdraw such deposit. iv. The revision petitioners 2 and 3 shall appear before the trial court to suffer substantive sentence of simple imprisonment as ordered above on or before 24-3-2015 with sufficient proof to show payment of compensation. v. In default, the revision petitioners 2 and 3 shall undergo simple imprisonment for a period of 3 months each. The Criminal Revision Petition is disposed of accordingly. Sd/- **(** _**K.HARILAL, JUDGE)**_ okb.