Kerala High Court
M/S. Green Sea Marine vs K.K.Babu on 25 August, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2287 of 2009()
1. M/S. GREEN SEA MARINE
... Petitioner
2. S.KUNJU MOHAMMED,
Vs
1. K.K.BABU,KIZHAKKEVEETTIL HOUSE
... Respondent
2. P.A.MOHAMMED NAZAR
3. STATE OF KERALA
For Petitioner :SRI.BABU CHERUKARA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/08/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2287 of 2009
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Dated this the 25th day of August, 2009.
ORDER
Heard both sides.
2. This revision is in challenge of judgment of learned Additional Sessions Judge-III, Ernakulam in Crl.Appeal No.17 of 2007 confirming conviction but modifying sentence of petitioner No.2/accused No.2 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act"). Respondent No.1 is a commission agent dealing in auction of marine products at Munambam Harbour and claimed that petitioner No.1/accused No.1 is engaged in export of marine products. Petitioner No.2/Accused No.2 is the managing partner and accused No.3, partner of petitioner No.1/accused No.1. Complainant and accused had business dealings. Accused used to purchase marine products from the complainant in bulk for exporting the same. In that business Rupees five lakhs is due to the complainant. On complainant demanding payment of that amount accused Nos.2 and 3 issued Ext.P1, dated 18.8.2001. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Service of statutory notice on accused No.3 is proved by Ext.P8. Notice issued to accused Nos.1 and 2 were returned unclaimed inspite of giving intimation. Exts.P5 to P7 are the postal receipts for sending notices by registered post. Respondent No.1 gave evidence as PW1. Case of accused is Crl.R.P.No.2287/2009 2 that at the time of starting business signed blank cheques were taken from the accused as security. They purchased products from the complainant. On 21.8.2001 Rupees two lakhs was paid to the complainant. A further sum of Rs.10,000/- was paid to complainant on 25.9.2001. Thus the entire liability has been discharged. Petitioner examined DW1, manager of the canara bank and proved Exts.D1 to D3. Ext.D1 is the extract of the ledger account. Ext.D2 is the photocopy of the cheque dated 21.8.2001 and Ext.D3, a cheque dated 25.9.2001. These cheques are produced by the petitioner to show that a total sum of Rs.2,10,000/- was transferred from the account of accused to the account of respondent No.1. Courts below found that Exts.D2 and D3 do not in any way bind respondent No.1 and held in favour of due execution of the cheque. It is contended by learned counsel that due execution of the cheque is not proved.
3. It is not disputed by accused also that they had business transactions with respondent No.1. Their case is that the entire liability has been discharged as per Exts.D2 and D3. Ext.D1, the ledger extract is for the period from 1.6.2001 to 30.9.2001 concerning the account maintained by accused No.1. As per Ext.D2, one Babu had withdrawn Rupees two lakhs from the account of accused No.1 on 21.8.2001. As per Ext.D3 Babu withdrew another sum of Rs.10,000/- from the same account on 25.9.2001. But respondent No.1 Crl.R.P.No.2287/2009 3 when examined as PW1 stated that he did not withdraw any amount as claimed by the petitioners/accused Nos.1 and 2. I have gone through the signature on Exts.D2 and D3 and find that those signatures do not tally. Full name and address of the payee is not available in Exts.D2 and D3. It only says about one Babu. There is no material on record to show that Babu referred to in Exts.D2 and D3 is respondent No.1/complainant. DW1, manager of the drawee bank was not able to give evidence connecting Ext.P1 to Exts.D1 and D2. It is also brought out in evidence that one Ramakrishnan was the manager of the drawee bank during the relevant time and that accused were prosecuted in the CBI Court, convicted and sentenced to undergo imprisonment for one year each. Allegation was that accused and the said Ramakrishnan in collusion with each other withdrew huge amounts from the bank through the account of accused No.1. Learned counsel for respondent No.1 says that no reliance can be placed on Exts.D2 and D3. In the absence of sufficient evidence to connect respondent No.1 with Exts.D2 and D3 I am unable to rely on Exts.D2 and D3. Therefore, the plea of discharge based on Exts.D2 and D3 cannot stand.
4. On the other hand there is evidence of PW1 regarding the transaction. Ext.P1 contains the signature of accused Nos.2 and 3 in their capacity as managing partner and partner respectively. It is also to be noted that though a statutory notice was served on accused No.3 he did not reply. Notice issued to petitioners/accused Nos.1 and 2 were returned unclaimed inspite of Crl.R.P.No.2287/2009 4 giving intimation which indicated that they were aware of the claim being made on behalf of respondent No.1. Courts below considered the evidence and found that there is no reason to disbelieve the version of respondent No.1 regarding the transaction and execution of the cheque. In the absence of any illegality, irregularity or impropriety there is little reason to interfere with that finding in revision to the extent it concerned the petitioners/accused Nos.1 and 2.
5. Learned magistrate sentenced petitioner No.2/accused No.2 and respondent No.2/accused No.3 for simple imprisonment for one year and directed them to pay compensation of Rs.2,50,000/- each to respondent No.1 . A default sentence of imprisonment for two months was provided. No separate sentence was awarded to accused No.1, partnership firm. That part of the judgment is not challenged by respondent No.1. Appellate court while modifying substantive sentence awarded to petitioner No.2/accused No.2 and respondent No.2/accused No.3 as simple imprisonment till rising of the court, directed them to pay compensation of Rs.3,50,000/- each to respondent No.1 under Section 357(3) of the Code of Criminal Procedure. A default sentence of imprisonment for two months was also provided.
6. So far as accused No.3 has not come up in revision, I am not going into the question whether sentence awarded to respondent No.2/accused No.3 is excessive. It is argued by learned counsel for petitioner Nos.1 and 2 that compensation directed to be paid by petitioner No.2/accused No.2 is excessive. Crl.R.P.No.2287/2009 5 Learned counsel states that it is without any valid reason that compensation is enhanced from Rs.2,50,000/- to Rs.3,50,000/-. Learned counsel for respondent No.1 contends that transaction was of the year 2001, that it is a commercial transaction and almost eight years have elapsed. It is true that it is within the power of the appellate court to award compensation by virtue of Section 357(4) of the Code of Criminal Procedure. But I find that there is no reason stated by the appellate court for enhancing the compensation from Rs.2,50,000/- to Rs.3,50,000/-. It is true that it is a commercial transaction. Considering the facts and circumstances and all other relevant aspects I am satisfied that compensation of Rs.2,75,000/- is sufficient in the ends of justice.
7. Considering the difficulties of petitioner No.2/accused No.2 expressed by counsel to raise the amount immediately, he is granted time till 25.1.2010 to deposit compensation. In case of failure he has to undergo simple imprisonment for three months.
Resultantly this revision petition is allowed in part to the following extent:
i. While retaining substantive sentence of petitioner No.2/accused No.2 as modified by the appellate court, compensation payable
by petitioner No.2/accused No.2 is modified as Rs.2,75,000/- (Rupees Two lakhs seventyfive thousand only).
ii. Petitioner No.2/accused No.2 is granted time till 25.1.2010 to deposit the above said amount in the trial court failing which he has to Crl.R.P.No.2287/2009 6 undergo simple imprisonment for three months.
iii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner No.2/accused No.2 paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the above said period.
Petitioner No.2/accused No.2 shall appear in the trial court on 27.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner No.2/accused No.2 will stand in abeyance.
THOMAS P.JOSEPH, Judge.
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