Surya Systems & Devices v. Shijo Augustine & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932** **Crl.Rev.Pet.No. 2306 of 2010()** **-------------------------------------------** **CRA.682/2007 of ADDL.SESSIONS COURT (SPECIAL), KOTTAYAM CC.1050/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, KOTTAYAM** **....................** ## **REVN. PETITIONERS/APPELLANTS/ACCUSED** **--------------------------------------------------------------------** **1. M/S.SURYA SYSTEMS & DEVICES, KOTHANALLOOR. P.O, KOTTAYAM, REPRESENTED BY ITS PARTNER SURESH KUMAR.** **2. SURESH KUMAR, S/O.KRISHNAN NAIR, PARTNER, SURYA SYSTEMS & DEVICES, KOTHANALLOOR.P.O, KOTTAYAM.** **3. SAJI. M.S, S/O.SUKUMARAN, PARTNER, SURYA SYSTEMS & DEVICES, KOTHANALLOOR.P.O, KOTTAYAM.** **BY ADV. SRI.B.PREMOD, SRI.SUDHEER GANESH KUMAR.R.** ## **RESPONDENTS/RESPONDENT/COMPLAINANT & STATE** **-----------------------------------------------------------------------------------** **1. SHIJO AUGUSTINE,S/O.AUGUSTINE, NELLANANICKAL HOUSE, RAMAPURAM BAZAR.P.O, KOTTAYAM, PIN CODE-686 564.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.R.P. No. 2306 of 2010 ----------------------------------------** Dated the 2[nd] August, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act are the revision petitioners as they are aggrieved by the conviction and sentence imposed against them as per the impugned judgment. 2. The case of the complainant is that the complainant was entrusted with the work/manufacture of Electric Chokes for the accused and accordingly the complainant supplied manufactured pieces of electric chokes to the accused upon their request and towards the partial discharge of the liability that arose out of the said transaction, the accused issued the cheque dated 30.5.2004 for an amount of Rs.1,50,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioners/accused miserably failed to pay the cheque amount in spite of a formal notice CRL.R.P.2306/10 ## **-:2:-** caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-III, Kottayam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.1050/2004. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P8 as documentary evidence. No evidence, either oral or documentary produced from the side of the defence. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court has held that the complainant has succeeded in establishing the allegation against the revision petitioners-accused and found that the revision petitioners-accused are guilty. Consequently, the accused are convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioners 2 and 3/accused 2 and 3 to undergo simple imprisonment for 6 months and to pay compensation of CRL.R.P.2306/10 ## **-:3:-** Rs.1,50,000/-, to the complainant under section 357(3) Cr.P.C and in default of payment, to undergo simple imprisonment for 3 months more after exhausting the provisions under section 421 Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioners-accused preferred an appeal, by judgment dated 10.9.2009, the court of Addl. Sessions Judge, (Special), Kottayam, in Crl.A.No.682/2007, dismissed the appeal confirming the conviction and sentence imposed against the revision petitioners. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioners-accused imposing sentence against them. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioners-accused. Though the revision petitioners are heard elaborately, CRL.R.P.2306/10 **-:4:-** nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. 4. The learned counsel vehemently submitted that the courts below have committed mistake in not appreciating the stand taken by the accused in the case, especially, in not acting upon the agreement allegedly entered into between the complainant and the accused. Thus, according to the learned counsel, there was no liability upon the accused, to honour the claim raised through the cheque in question which issued at the time of receiving the manufactured electric chokes supplied by the complainant, since the electric chokes supplied by the complainant were defective and as per the terms of the agreement, the accused were not liable to pay the amount covered by the cheque in question which issued as a security. I am unable to accept the above contention. As evidenced by the judgments of the trial court as well as the lower CRL.R.P.2306/10 **-:5:-** appellate court, though the accused has taken a contention to the effect that the cheque in question was issued as a security and thereafter contented that the electric chokes supplied by the complainant were defective, such contentions are not substantiated by adducing any evidence to make out a case against the evidence and materials furnished by the complainant. The trial court as well as the lower appellate court has concurrently found that the cheque in question was issued by the accused towards the discharge of their liability that arose out of the transaction for the supply of electric chokes as per the agreement entered into between the complainant and the accused. When the complainant stick on his case of transaction between the complainant and the accused for the manufacture and supply of electric chokes and when the same pleaded and proved that the cheque in question was issued towards the discharge of the liability that arose out of the transaction between the accused and the complainant, it is for the accused to establish that the cheque in question was issued as security and there is no liability due to the CRL.R.P.2306/10 **-:6:-** complainant because the electric chokes supplied by the complainant were defective or the defect of the chokes were not cured and resupplied. Admittedly, no evidence is adduced in this regard. Therefore I find no reason to take a different view from the stand taken by the trial court as well as the lower appellate court. So the conviction recorded by the courts below is only to be approved and I do so. 5. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that the sentence imposed by the courts below is unreasonable and exorbitant and a lenient view may be taken in the matter of sentence and time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that such submission can be considered favourably, but subject to other facts and circumstances involved in this case. 6. The cheque in question is dated 30.5.2004 that too for an amount of Rs.1,50,000/-. Both the courts below CRL.R.P.2306/10 **-:7:-** have concurrently found that the said amount is due to the complainant out of the business transaction entered into between the parties. Of course , the Apex Court, in its recent decision 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. Therefore, considering the above settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of imprisonment awarded by the course below can be modified and reduced and at the same time while granting some time to pay the compensation amount, the amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below against the revision petitioners under section 138 of the NI Act. Accordingly, the sentence of imprisonment is modified and reduced from six months to one day simple imprisonment, i.e, till the rising of the court and the revision petitioners are further directed to pay a sum of Rs.1,65,000/- to the complainant within three CRL.R.P.2306/10 ## **-:8:-** months from today as compensation under section 357(3) Cr.P.C., and in default in paying the amount, they are ordered to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioners are directed to appear before the trial court on **2nd November, 2010** to receive the sentence and to pay the compensation amount. If there is any default on the part of the revision petitioners in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioners to secure their presence and to execute the sentence and for realisation of the amount. Execution of warrant if any pending against the revision petitioners shall be kept in abeyance till 2.11.2010. This Crl.R.P. is disposed of accordingly. **V.K.MOHANAN, JUDGE** **kvm/-** CRL.R.P.2306/10 ## **-:9:-** kvm/-