Sunny Ittiyavira v. Mardec R.K. Latex Pvt. Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936** ## **Crl.Rev.Pet.No. 2020 of 2014 ()** **-------------------------------------AGAINST THE JUDGMENT IN Crl. APPEAL 41/2013 of ADDL. SESSIONS COURT - IV, KOTTAYAM, DATED 26-08-2014** **& AGAINST THE JUDGMENT IN ST 229/2011 of J.M.F.C.III, KANJIRAPPALLY, DATED 16-01-2013** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------------------------------------** **SUNNY ITTIYAVIRA, KANGAZHAPARAMBIL HOUSE, VIZHIKKATHODU P.O., KANJIRPPALLY TALUK, KOTTAYAM DISTRICT, PIN: 686 527.** **BY ADVS.SRI.A.V.THOMAS (SR.) SMT. M.M.JASMIN SRI. NIDHI SAM JOHNS** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **-----------------------------------------------------------------------** **1. MARDEC R.K. LATEX PVT. LTD. REPRESENTED BY EMMANUEL VARGHESE, DEPUTY GENERAL MANAGER, MARDEC R.K.LATEX PRIVATE LTD., THAMBALAKKADU P.O., KOTTAYAM DISTRICT, PIN: 686 506.** **2. STATE OF KERALA, REPRESENTED BY ADDL. PUBLIC PROSECUTOR.** ## **R 2 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl. R. P. No.2020 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 26[th] day of November, 2014 ## **O R D E R** Accused in S.T.No.229/2011 on the file of the Judicial First Class Magistrate Court-III, Kanjirappally, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent company against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). 2. The case of the complainant in the complaint was that, the complainant is a private limited company, registered under the Companies Act and represented by its Deputy General Manager of Thambalakkad Branch. As per an agreement, the revision petitioner had undertaken to supply latex to the company on commission basis and in connection with the same, an amount of 1,50,500/- was due from him and discharge of₹ that liability he had issued Ext.P5 cheque dated 01.04.2009 for the said amount drawn on South Indian Bank, Kanjirappally Branch, in favour of the complainant. 2 Crl. R. P. No.2020 of 2014 The cheque when presented was dishonored for the reasons ‘funds insufficient’, vide Ext.P6 dishonour memo and that was intimated to the complainant by their banker vide Ext.P7 intimation letter. The complainant issued Ext.P9 notice dated 17.07.2009 and on the same day vide Ext.P8 postal receipt and the same was received by the revision petitioner evidenced by Ext.P10 postal acknowledgment on 20.07.2009. The revision petitioner sent Ext.P11 reply with false allegations and he had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint. 3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, PW1, the authorised person of the company authorised as per Ext.P2 resolution was examined and Ext.P1 to P11 were marked on their side. After closure of the complainant's Crl. R. P. No.2020 of 2014 3 evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had no transaction as alleged by the complainant, but he was appointed as an agent for collecting latex for the company along with other agents and as security for the same, a cheque was obtained and mis-using the cheque, the present complaint was filed. He had not adduced any oral evidence, except marking Exts.D1 to D2 through PW1. After considering the evidence on record, the court below rejected the contentions of the revision petitioner and accepted the case of the complainant and found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also to pay a compensation of ₹1,50,500/to the complainant, in default to undergo simple imprisonment for three months 4 Crl. R. P. No.2020 of 2014 more. Dissatisfied by the same, the complainant filed Criminal Appeal No.41/2013 before the Sessions Court, Kottayam, which was made over to 4[th] Additional Sessions Court, Kottayam, for disposal and the learned Additional Sessions Judge, allowed the appeal in part, confirming the order of conviction and direction to pay compensation with default sentence under Section 357(3) of the Code of Criminal Procedure, but reduced the substantive sentence to imprisonment, till rising of the court and enhancing the default sentence to six months. Aggrieved by the same, the present revision has been filed by the revision petitioner/ accused before the court below. 4. Considering the scope of enquiry and nature of contentions raised, this court felt that, the revision can be disposed of at the admission stage itself, after hearing the counsel for the revision petitioner and the learned Public Prosecutor appearing for the 2[nd] respondent, dispensing with notice to the first respondent. Crl. R. P. No.2020 of 2014 5 5. The counsel for the revision petitioner submitted that Exts.D1 and D2 and the evidence of PW1, will go to show that, the revision petitioner is one of the agents appointed by the company on commission basis and in fact the liability of all the commission agents has been fastened on him and in fact no amount was due and Ext.P5 cheque was obtained as a blank signed cheque as security, at the time when he was appointed as commission agent, which was later filled up and the present complaint was filed. He had rebutted the presumption and he sent reply stating all these facts. So the courts below were not justified in convicting the revision petitioner for the offence alleged. 6. On the other hand, learned Public Prosecutor supported the concurrent findings of the court below and submitted that no interference is called for. 7. The case of the complainant in the complaint was that, the revision petitioner was appointed as commission agent for supplying latex and an amount of Crl. R. P. No.2020 of 2014 6 ₹1,50,500/- was due in that transaction and in discharge of that liability, he had issued Ext.P5 cheque. But the case of the revision petitioner was that, at the time when he was appointed as a commission agent along with others, a blank signed cheque was obtained as security and no amount was due from him. The blank signed cheque was mis-used and the present complaint was field. In order to prove the case of the complainant, the authorized person of the complainant company was examined as PW1 and he deposed in support of the case in the complaint. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding this aspect. Further he had categorically stated that, the amount due is the value of the barrels entrusted to the revision petitioner which he did not return. They have relied on Ext.P2 agreement, Ext.P4 accounts statements and Ext.P3 pass book to prove this fact. Exts.D1 and D2 were dated 10.09.2008 and 16.10.2008 respectively, were issued to the revision Crl. R. P. No.2020 of 2014 7 petitioner by the complainant concern for the supply of barrels and those were entered into Ext.P3 pass book as well. So there is nothing to doubt the genuineness of Ext.P3 pass book. Further Ext.P2 is the agreement executed by the revision petitioner regarding his appointment as commission agent. No independent evidence was adduced on the side of the revision petitioner to prove his case as well. So in the absence of any convincing evidence adduced on the side of the revision petitioner to prove his case, courts below were perfectly justified in relying on the evidence of PW1 and the documentary evidence adduced on their side, coming to the conclusion that, the amount mentioned in Ext.P5 cheque was due from the complainant to the revision petitioner and the revision petitioner had issued the cheque in discharge of that liability. The revision petitioner had not paid the amount on receipt of the notice. Once it is proved by the complainant that the revision petitioner had not paid the amount after 8 Crl. R. P. No.2020 of 2014 intimation of the dishonour and demand made, the offence under Section 138 of the Act is complete. So the courts below were perfectly justified in convicting the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below on facts on this aspect do not call for any interference. 8. As regards the sentence is concerned, the court below sentenced the revision petitioner to undergo simple imprisonment for one year and also to pay the cheque amount of 1,50,500/- as compensation to the₹ complainant, in default to undergo simple imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. The same was modified by the appellate court by reducing the substantive sentence to imprisonment till rising of the court and default sentence to six months simple imprisonment, by retaining the compensation awarded. So maximum leniency has been shown by the appellate court in imposing the sentence, which cannot be said to be excessive or harsh and this do Crl. R. P. No.2020 of 2014 9 not call for any interference. 9. While this court is about to dispose of the case, the counsel for the revision petitioner prayed six months time for payment of the amount. Considering the amount involved, this court felt that, that is reasonable. So the revision petitioner is granted time till 26.05.2015 to pay the amount, till then, the execution of the sentence is directed to be kept in abeyance. If the revision petitioner pays the amount directly to the complainant and produces proof of payment of the same before the court below and the complainant appears before the court below and acknowledges the payment of the same, then court below is directed to treat the same as substantial compliance of the direction to pay compensation by the courts below and confirmed by this court and record the same in the respective registers and allow the revision petitioner to serve substantive sentence of imprisonment, till rising of the court, as provided in the decision reported in **(2010(2) KLT** Crl. R. P. No.2020 of 2014 10 **1017) Beena v. Balakrishnan Nair and Another and (2012(4) KLT 21) Sivankutty v. John Thomas and Another** . The amount if any deposited by the revision petitioner before the court below as directed by the appellate court for suspending the sentence, is directed to be adjusted towards the amount payable as compensation as directed in this judgment. With the above direction and observation, the revision petition is dismissed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, (Judge)** // True Copy// P.A. to Judge ss