Pushpam Francis v. Bosco Enterprises and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 2140 of 2013** **-------------------------------CRL.A.NO.21/2013 OF FIRST ADDITIONAL SESSIONS COURT, KOLLAM** **....** **ST NO.260/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT III, KOLLAM** **...** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **--------------------------------------------------------------------------------** **PUSHPAM FRANCIS,AGED 53 YEARS, W/O.LATE FRANCIS, MUNDAZHIKAM PURAYIDOM, VADDY CUTCHERRY P.O., KOLLAM.** **BY ADVS.SRI.K.SHAJ SRI.SAJJU.S SRI.RENJIT GEORGE** ## **RESPONDENTS/COMPLAINANT/STATE:** **-----------------------------------------------------------** ## **1. M/S. BOSCO ENTERPRISES,** **BOSCO BHAVAN, MUNDAKKAL WEST, KOLLAM-1 REPRESENTING BY ITS MANAGING PARTNER THOMAS JOHN BOSO AND PARTNERS.** ## **2. THOMAS JOHN BOSCO,** - **MANAGING PARTNER, M/S.BOSCO ENTERPRISES,BOSCO BHAVAN, MUNDAKKAL WEST, KOLLAM-1.** **3. JOHN BOSCO, MANAGING PARTNER, M/S.BOSCO ENTERPRISES, BOSCO BHAVAN, MUNDAKKAL WEST, KOLLAM-1.** ## **4. JACOB JOHN BOSCO,** - **MANAGING PARTNER, M/S.BOSCO ENTERPRISES,** - **BOSCO BHAVAN, MUNDAKKAL WEST, KOLLAM-1.** ## **5. INNOCENT JOHN BOSCO,** - **MANAGING PARTNER, M/S.BOSCO ENTERPRISES,** - **BOSCO BHAVAN, MUNDAKKAL WEST, KOLLAM-1.** **6. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY ADVS. SRI.V.V.RAJA** **SRI.M.T.SURESHKUMAR** **R6 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **K. HARILAL, J. ---------------------Crl.R.P. No.2140 of 2013 ------------------------------Dated this the 27[th] day of November, 2013** ## **ORDER** The Revision Petitioner is the accused in S.T.No.260/07 on the files of the Judicial First Class Magistrate's Court-II, Kollam, and the respondents are the complainants therein. The Revision Petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the N.I.Act') on a complaint filed by the 1[st] respondent herein. After trial, the learned Magistrate found the Revision Petitioner guilty of the said offence and convicted thereunder. She was sentenced to undergo simple imprisonment for six months and to pay Rs.5,55,000/- to the complainant as compensation under Section 357(3) of the Cr.P.C. Feeling aggrieved, though she had preferred Crl.Appeal No.434/10 before the I Additional Sessions Court, Kollam, after re- **Crl.R.P. No.2140 of 2013 2** appreciating the evidence, the learned Sessions Judge set aside the conviction and sentence imposed on the revision petitioner and remitted back the case for fresh disposal. 2. Thereafter, both parties adduced evidence and after hearing afresh the learned Magistrate again convicted the revision petitioner for the said offence and sentenced thereunder. She was sentenced to undergo simple imprisonment for one day till rising of the court and to pay a fine of Rs.8,50,000/- which includes interest at the rate of 9% from the date of institution of the complaint. In default, the accused shall undergo simple imprisonment for a further period of six months. The fine amount if recovered shall be given to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. Feeling aggrieved by the conviction and sentence, again the revision petitioner filed Crl. Appeal No.21/13 before the I Additional Sessions Court, Kollam. After reappreciating the evidence, the learned Sessions Judge confirmed the conviction and sentence as such without any interference. This Revision Petition is filed **Crl.R.P. No.2140 of 2013 3** challenging the concurrent findings of conviction and sentence. 3. The case of the compliant is that the 1[st] respondent is a duly registered partnership firm and complainants 2 to 5 are its partners and the accused subscribed certain chits conducted by the complainants and received the bid amount of respective chits and agreed to repay the amount in 20 equal monthly instalments; but she committed default in repayment of Rs.5,55,000/- While so, on 20/08/2006, the accused issued a cheque for Rs.5,55,000/- in full and final discharge of her liability by issuing Ext.P1 cheque dated 25/08/2006. When the cheque was presented for encashment the same was dishonoured and returned for want of sufficient funds. Though he caused to issue a lawyer's notice, and the accused received the same but she didn't send a reply denying the liability nor did she pay off the cheque amount. Thus the accused committed the offence punishable under Section 138 of the N.I.Act. 4. To prove the prosecution case, the complainant **Crl.R.P. No.2140 of 2013 4** was examined as PW1 and another official witness was examined as PW2. Exts. P1 to P36 were marked. After considering the evidence of PW1 and Exts. P1 to P36, the learned Magistrate found that the respondent had discharged the initial burden to prove the execution and issuance of the cheque and thereby respondent is entitled to get benefit of the presumption under Section 118 (a) and 139 of the N.I. Act. The Revision Petitioner contested the case by raising a defence that she was one of the employees of the firm and she was engaged to collect due amounts of the firm's customers and as the measure of the security, the firm obtained signed blank cheques and other documents from her. It is also her contention that when she joined as collection agent at the behest of the complainants, the accused opened a bank account and she was introduced to the bank by the complainants themselves and hereby they obtained blank cheques and she never subscribed any chits from the complainants. To prove the defence contention Exts. D1 and D2 were marked and no oral evidence was adduced by the accused **Crl.R.P. No.2140 of 2013 5** in defence. 5. Going by the impugned judgment it could be seen that the main legal issue raised by the accused in defence was that the complaint itself is not maintainable under Section 138 of the N.I.Act. as the firm was dissolved after filing the complaint. Therefore, the complainant could not have been prosecuted after dissolution of the partnership firm and thereby the court below ought to have dismissed the complaint. The trial court ought to have considered the status of the firm more elaborately as to ascertain whether the complaint is properly instituted one. It is the admitted case of complainant that the firm was a registered partnership firm; but thereafter during the pendency of the complaint the firm was dissolved by Ext.P17 dissolution deed. 6. Going by the complaint, it is evident that complaint was instituted accordingly, and the partnership firm was arrayed as 1[st] complainant and the Managing partner as well as other partners were joined as complainants 2 to 5. The fact that the firm is registered **Crl.R.P. No.2140 of 2013 6** before the Registrar of firms is indisputably proved by the evidence of PW2, who was examined after the order of remand. PW2 is the officer of the Registrar of Firms and he identified Exts.P29, P30 and P31 on examination. The said document relates to the registration of firm, application of registration and other matters. He deposed that in Ext.P31 it is stated that the firm was dissolved. Thus it has come out in evidence that the firm was a registered partnership firm and it was subsequently dissolved by Ext.P17 dissolution deed. Then the question arises for consideration is whether the said complainant can be prosecuted further as such after the dissolution of the firm. 7. Going by Ext.P17 dissolution deed proved through PW1, it is specifically mentioned that all actions and proceedings initiated by the dissolved firm could be continued by PW1 and he would take over the firm as a proprietary concern. The court below further observed that even though PW1 was cross examined as to the status of the complainants, nothing material is **Crl.R.P. No.2140 of 2013** **7** forthcoming to discredit the version of PW1. The court below further observed that once a criminal complaint is properly instituted in the name of payee, when the payee become non existent, it would not affect the validity of further proceedings and the evidence required to establish the case could be adduced by any other person who is capable of giving evidence. Even after the death of the complainant the legal heirs can continue prosecution with the permission of the court. 8. In the present case, Ext.P17 clearly shows that PW1 is authorised to proceed with the actions initiated by the firm and the firm is converted as a proprietary concern of PW1. In that context, I am also of the opinion that there is nothing wrong in continuing the prosecution by PW1 or giving evidence in this case and dissolution of the firm during the pendency of proceedings would no way affect the maintainability of the legal proceedings. Thus the legal issue raised by the accused stands rejected as unsustainable. 9. Coming to the factual issue, though the accused **Crl.R.P. No.2140 of 2013 8** has raised a defence version that the cheque was issued as a security for getting employment in the firm of the complainant, as collection agent, no evidence was adduced to prove the said contention nor did she succeed in bringing any improbability of the prosecution case while cross examining the complainant. In that context, the court below found that though the respondent successfully discharged the initial burden of proving execution and issuance of the cheque, the Revision Petitioner miserably failed to rebut the presumption under Section 118 (a) and 139 of the N.I.Act which stood in favour of the respondents. I also concur with the said findings. Re-appreciation of evidence is impermissible unless it is found that the inferior court could not have formed such an opinion on the basis of the material available on record or the findings are so perverse or unacceptable. In the absence of any perversity in the appreciation of evidence, I confirm the concurrent findings of conviction. 10. Coming to the sentence the learned counsel for **Crl.R.P. No.2140 of 2013 9** the Revision Petitioner submits that the Revision Petitioner is a house wife having no job or income at present and her husband is no more. She is suffering from acute financial crisis and she is unable to pay the exorbitant amount granted as compensation to the Respondents. She has no landed property at all and now she is residing in a rented house. 11. Per contra, the learned counsel for the respondents drew my attention to _**Vijayan vs. Baby**_ **(** 2011(4) KLT 355 SC) paragraph 12. It is true that in paragraph 12, While considering the quantum of compensation payable under Section 357 (3) of the Cr.P.C., the Supreme Court held that the courts should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount ( keeping in view of the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. It is seen that the dictum is laid down for attaining uniformity and ## **Crl.R.P. No.2140 of 2013 10** consistency in deciding similar cases by different courts. But I am of the opinion that this decision permits the reduction of the percentage of interest if there are special circumstances in evidence. Similarly, it is the settled position that while fixing the quantum of compensation under Section 357(3) of Cr.P.C the financial capacity of the accused can also taken into consideration. Therefore, In view of the present living condition of the Revision Petitioner as a widow without any help or assistance from anybody else, I am of the opinion that it could be taken as a special circumstance for reducing the rate of interest payable to the respondents. The cheque amount is Rs.5,55,000/-. Now it is true that seven years have been elapsed; but the court below fixed Rs.8,50,000/- ie. an excess amount of Rs.2,95,000/-. I find that the enhanced compensation is a little excessive. Therefore, the quantum of compensation payable to the respondent will stand reduced and modified to Rs.7,00,000/- only. But the same shall be given within a period of two months only. Thus the **Crl.R.P. No.2140 of 2013** **11** sentence imposed on the Revision Petitioner will stand modified as follows. i) The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. ii) The Revision Petitioner shall pay a compensation of Rs.7,00,000/- (Rupees Seven Lakhs only) to the complainant /respondent within a period of two months from today under Section 357(3) of Cr.P.C. iii) The Revision Petitioner shall appear before the trial court to suffer substantive sentence of simple imprisonment as ordered above on or before 27/01/2014 with sufficient proof to show payment of compensation. iv) In default, the Revision Petitioner shall undergo simple imprisonment for six months. ## Sd/- **K.HARILAL, JUDGE** OKB/MJL