Kerala High Court
Third Eye Event Management India ... vs Malayalam Communication Limited on 7 November, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939
Crl.Rev.Pet.No. 1330 of 2017 ()
--------------------------------
CRA NO.162/2011 OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-I,
THIRUVANANTHAPURAM
ST NO.14/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-VII,
THIRUVANANTHAPURAM
REVISION PETITIONER(S)/APPELLANTS/ACCUSED:
-----------------------------------------
1. THIRD EYE EVENT MANAGEMENT INDIA PRIVATE LTD.,
6TH FLOOR, APPLE TOWER, EDAPPALLY,
BYE-PASS ROAD, KOCHI,
REPRESENTED BY ITS DIRECTOR.
2. AZIZ,
DIRECTOR OF
THIRD EYE EVENT MANAGEMENT INDIA PRIVATE LTD.,
6TH FLOOR, APPLE TOWER, EDAPPALLY,
BYE-PASS ROAD, KOCHI.
BY ADV. SRI.M.ABDUL RASHEED
RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:
----------------------------------------------
1. MALAYALAM COMMUNICATION LIMITED,
VADAKKEKOTTARAM, PADMAVILASOM ROAD, FORT,
THIRUVANANTHAPURAM,
REPRESENTED BY ITS SENIOR GENERAL MANAGER(FINANCE),
VENKITARAMAN - 695 001.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
R1 BY ADVS. SRI.S.BALACHANDRAN (KULASEKHARAM)
SRI.V.R.GOPU
R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 07-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ww
ALEXANDER THOMAS, J.
-------------------------------------------
Crl.R.P. No.1330 of 2017
-----------------------------------------------
Dated this the 7th day of November, 2017
ORDER
The petitioners are accused in S.T.No.14/2009 on the file of the Judicial First Class Magistrate's Court-VII, Thiruvananthapuram, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1st respondent (complainant). The trial court as per the impugned judgment dated 04.03.2011 had convicted the 1st accused to pay a fine of Rs.5,000/- and sentenced the 2nd accused to undergo simple imprisonment for 15 days and to pay fine of Rs.70,154/-, in case of payment of which, the same was ordered to be paid as compensation to complainant under Sec.357(1)(b) of the Cr.P.C. and in default thereof, to undergo simple imprisonment for a further period of one month.
2. Aggrieved thereby, the petitioners had preferred Crl.Appeal No.162/2011 before the Sessions Court concerned (Court of Addl. Sessions Judge-I, Thiruvananthapuram). The appellate court as per the impugned appellate judgment dated 29.02.2016 had upheld the conviction, but modified the substantive sentence imposed on the second accused to imprisonment till rising of the court. It is aggrieved by the said concurrent findings of both the courts below that the petitioners have filed the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of Crl.R.P. No.1330 of 2017 2 the Cr.P.C.
3. Heard Shri. M. Abdul Rasheed, learned counsel appearing for revision petitioners/accused, Shri. V.R. Gopu, learned counsel appearing for R1(complainant) and Shri. Saigi Jacob Palatty, learned Public Prosecutor appearing for R2 (State of Kerala).
4. The gist of the case of the complainant is to the effect that the complainant is a Company which is conducting a television channel by name "Kairali", "People" and "V" and that the 2nd accused is a Director, who is responsible for the conduct of the 1st accused Company and he is also the Director of another Company by name "Third Eye Communications Pvt. Ltd" which is a sister concern of the 1st accused Company. That the above sister concern Company had entered into transactions with the complainant Company for telecasting their advertisements and in those transactions, an amount of Rs.70,153.93 was due from the above said sister concern Company to the complainant and that the 1st accused Company had taken over the said liability from its sister concern and had issued Ext.P1 cheque dated 15.10.2008 for Rs.70,153.93/- drawn from its account in discharge of the said liability, payable in favour of the complainant which when presented resulted in dishonour. Thereafter the complainant, after adhering to the requisite formalities, has instituted the above complaint, which led to the conduct Crl.R.P. No.1330 of 2017 3 of the trial.
5. During the trial the authorised official of the complainant Company was examined as PW1 and marked Exts.P1 to P8 documents. The defence has not adduced any oral or documentary evidence.
6. Both the courts below have found that PW1 has broadly deposed about the details of the transaction which led to the liability in question and also brought the aspects regarding the execution and dishonour of Ext.P1 cheque. The courts below have found that the defence taken up by the accused was to the effect that the above said cheque was given as a blank signed one as security as per a contract with the complainant Company, being a gurantee to the Company for 15 episodes of a television serial by name 'Ambili'. The accused has admitted his signature in Ext.P1 and that the said cheque belongs to the account of accused no.1 Company. Except the above said defence suggestion, no credible materials have been brought out in evidence to sustain the factual basis of such a defence plea. Since the signature of the cheque is not disputed and since the cheque has been issued from the account of the accused Company, the courts below have taken the view that the complainant is entitled for the benefit of statutory presumption under Section 139 of the Negotiable Instrument Act. The Crl.R.P. No.1330 of 2017 4 said view taken by the courts below is justified in the light of legal verdicts laid down by Apex Court in the decisions as in Rangappa Vs. Sri Mohan reported in [(2010) 11 SCC 441] and T.Vasanthakumar Vs.Vijayakumari reported in [(2015) 8 SCC 378]. The courts below have found that the evidence let in by PW1 is basically credible and believable and that the case of the defence is not a probable and credible one. It is in light of these aspects that the courts below, have found that the accused is liable to be convicted of the offence punishable under Section 138 of the Negotiable Instrument Act. The said fact findings are not vitiated by perversity and illegality and so this court is not in a position to interfere with the said concurrent findings of facts regarding the conviction of petitioner, in exercise of revisional powers. It is seen that accused no.1 Company has been sentenced to pay a fine of Rs.5,000/- and accused no.2 has been sentenced to undergo simple imprisonment for a period of 15 days and to pay compensation of Rs.70,154/-. The substantive sentence of simple imprisonment for 15 days has been reduced by the Appellate court to imprisonment till rising of the court and the fine amount Rs.70,154/-has been confirmed. The said sentence imposed by the Appellate court cannot be said to be excessive or disproportionate.
7. Shri. M. Abdul Rasheed, learned counsel appearing Crl.R.P. No.1330 of 2017 5 for the petitioners submits that in case this court is so inclined to confirm the conviction and the sentence, time by three months may be granted to pay the fine / compensation amounts. Accordingly, it is ordered that the impugned conviction and sentence imposed on the petitioners are confirmed in this case. The petitioners are given three months time in order to enable the accused no.1 Company to pay the fine amount of Rs.5,000/- and accused no.2 to pay the compensation amount of Rs.70,154/-. Petitioners may pay those amounts directly to the complainant and payment of the above fine amount of Rs. 5,000/- by accused no.1 Company to the complainant will be treated as if the said amount has been paid as fine and then disbursed to the complainant as compensation. Upon the receiving of such payments, the complainant shall issue necessary receipts as evidence of the payment, to enable the accused to produce the same before trial court to satisfy the said court about such payments. Accordingly the following directions and orders are passed:
(i) The impugned conviction, imposed on the petitioners for the offence punishable under Section 138 of the Negotiable Instrument Act, will stand confirmed and the 1st petitioner / accused no.1 (Company) is sentenced to pay a fine of Rs.5000/-. On default of payment of fine, the same has to be realised from the assets of accused no.1 Company.
(ii) The 2nd petitioner (accused no 2) is sentenced to simple imprisonment till rising the court and to pay a compensation Crl.R.P. No.1330 of 2017 6 amount of Rs.70,154/- directly to the complainant under Section 357(1)(b) of Cr.P.C. On default on the part of the 2nd petitioner to pay the above said amount, he will have to suffer a simple imprisonment for a period of one month.
(iii) The petitioners are given three months time to pay the above said amounts as directed herein above.
(iv) The 2nd petitioner (accused no.2) shall personally appear before the trial court at 11:00 a.m on any day on or before 07.02.2018 to receive the sentence of imprisonment till rising the court and to satisfy the said court, about payment of the fine amount of Rs.5,000/- on behalf of accused no.1 and compensation amount of Rs.70,154/- on behalf of accused no.2.
(v) On default on the part of accused no.1 (1st petitioner) to pay the fine amount, the same shall be realised from the assets of the accused no.1 Company.
(vi) On default on the part of accused no.2 (2nd petitioner) to pay the compensaion amount, he will have to suffer simple imprisonment for a period of one month.
(vii) Until 07.02.2018 all further coercive steps that may be taken against the petitioners in pursuance of the impugned sentence in this case will stand deferred.
The Registry will forward a copy of this order to the trial court for necessary information and action.
With these observations and directions, this Crl.R.P. will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE.
ww