Dismissed

Citra Fules Ltd. v. M/S. Lab & General Exports Pvt. Ltd.

Kerala HC4 Apr 2013Crl.Rev.Pet/670/2013

Case brief

AI extract

What is this about?

Justice K. Harilal dismissed the Criminal Revision Petition against conviction and sentence for cheque dishonour under Section 138 NI Act, finding no perversity. The court allowed six months to pay the fine, conditional on surrender and payment.

What did the court decide?

Conviction confirmed; fine of Rs.2,00,000/- payable within six months; imprisonment in default of payment.

Citra Fules Ltd. Vs M/S. Lab & General Exports Pvt. Ltd. — Cheque Dishonour | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

THURSDAY, THE 4TH DAY OF APRIL 2013/14TH CHAITHRA 1935

¶5

Crl.Rev.Pet.No. 670 of 2013 (C)

¶6

AGAINST THE JUDGMENT IN CRA.NO.547/2009 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM DATED 20/09/2012

¶7

AGAINST THE JUDGMENT IN CC.1061/2001 of CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM

¶8

PETITIONER/APPELLANT/ACCUSED:

¶9

1. M/S.CITRA FULES LTD., DOOR NO.35/1442, KOCHANATH BUILDING, JANATHA JUNCTION, PALARIVATTOM REPRESENTED BY JOHN MILTON

¶10

2. JOHN MILTON, CHAIRMAN AND MANAGING DIRECTOR, AGED 48 YEARS, M/S.CITRA FULES LTD., DOOR NO.35/1442, KOCHANATH BUILDING, JANATHA JUNCTION, PALARIVATTOM.

¶11

BY ADVS.SRI.M.RAMESH CHANDER (SR.) SRI.ANEESH JOSEPH

¶12

RESPONDENTS/COMPLAINANT/RESPONDENTS:

¶13

1. M/S. LAB & GENERAL EXPORTS PVT. LTD REGD.OFFICE 11/1, HOSUR ROAD, BANGALORE-560 029 REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR PAUL SOMAN, S/O.P.T.PAUL (THROUGH HIS POWER OF ATTORNEY HOLDER CHERIAN MATHEW, S/O.ELANJICKAL CHERIAN MATHEW, 31/K K P NAGAR, ALUVA-683 101.

¶14

2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

¶15

R2 BY SENIOR PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN

¶16

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶17

MJL

¶18

K.HARILAL, J.

¶19

--------------------Crl.R.P.No.670 OF 2013

¶20

Dated this the 4^th day of April, 2013.

¶21

ORDER

¶22

The Revision Petitioners are the 1^st and 2^nd accused in CCNo.1061/2001 on the files of Chief Judicial Magistrate Court, Ernakulam as well as appellants in Criminal Appeal No.547/2009 on the files of Additional Sessions Court (ADHOC-I) Ernakulam. They were prosecuted along with A3 to A5 for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'N.I Act.') on a complaint filed by the respondents. After trial the learned Magistrate found the Revision Petitioners/accused guilty of the offence punishable under Section 138 of the N.I.Act and convicted accordingly. A1 is sentenced to pay a fine of Rs.2,00,000/-(Rupees Two Lakhs only) and A2 to A5 are sentenced to undergo imprisonment for one day till the rising of the court and to pay a fine of Rs.2,00,000/-(Rupees Two

¶23

Crl.R.P.No.670 OF 2013

¶24

¶25

Lakhs only) each and in default A2 to A5 undergo simple imprisonment for three months each. Fine if realized Rs.9,00,000/- (Rupees Nine Lakhs only) shall be paid to the 1^st respondent/complainant as compensation under Section 357(3) of Cr.P.C. Though the Revision Petitioners had preferred an appeal the appellate court also confirmed the conviction and sentence. This revision petition is filed challenging the concurrent findings of conviction and sentence imposed on the Revision Petitioners.

¶26

The 1^st respondent's case is that the 1^st respondent is a company registered under Company's Act having registered office at Bangalore and 1^st Revision Petitioner/Accused No.1 is a company and Accused Nos.2 to 5 are its directors. The respondent Company advanced a loan of Rs. 5,00,000/- (Rupees Five Lakhs only) to the 1^st Revision Petitioner company and in discharge of the said liability the Revision Petitioners have issued a cheque for Rs.5,00,000/- (Rupees Five Lakhs only) dated 25/10/2000

¶27

Crl.R.P.No.670 OF 2013

¶28

¶29

signed by the 2^nd Revision Petitioner drawn on the account maintained by the 1^st Revision Petitioner company with Nedungadi Bank at Ernakulam South Branch. When the cheque was presented for encashment it was dishonourd for insufficiency of funds in the account of the Revision Petitioners on 27/10/2000. Though the statutory notice was given to the Revision Petitioners they didn't pay any amount but accused Nos. 3 to 5 sent a reply stating that they are not directors of the company and they are not liable to pay any amount.

¶30

To prove the execution and issuance of the cheque prosecution examined PW1 and marked Exts. P1 to P12. The contention raised by the Revision Petitioners is that they are not Directors of the company at the relevant time of occurrence. To prove their contention they have produced D1 form No.32 and certified copy of form No. 32 which was marked as D2. After considering evidence adduced by both parties the trial court found that the 1^st

¶31

Crl.R.P.No.670 OF 2013

¶32

¶33

respondent successfully discharged initial burden of proof regarding the execution and issuance of the cheque.

¶34

Exts.P2 to P5 well establishes the borrowal of

¶35

the amount from the 1^st respondent. The evidence of PW1 is consistent with Exts.P2 to P5. Ext.P9 shows that statutory notices were served on the accused; but A1 and A2 didn't send a reply denying the liability. Though the Revision Petitioners challenged the maintainability of the complaint due to the non-production of memorandum of association of the 1^st respondent company, authorizing PW1 to file complaint, the court below found that from the evidence of PW1 and from Ext.P1 it could be seen that PW1 is the Managing Director of the company and there is no reason to discard the said evidence. Exts.P7 to P10 established that the cheque was dishonoured for insufficiency of fund. A3 to A5 contended they resigned from the directorship and thereby they are not responsible for the conduct of the business of the company at the relevant time but Ext.P3 cut

¶36

Crl.R.P.No.670 OF 2013

¶37

¶38

the root of the said argument as Ext.P3 shows that A3 to A5 had authorized the 2^nd Accused/2^nd Revision Petitioner to receive the money from the complainant company. The Revision Petitioners miserably failed to rebut the presumption under Section 118(a) and 139 stood in favour of the 1^st respondent.

¶39

On the said premises the trial court rightly found the Revision Petitioners guilty of the offences alleged against them. In appeal the appellate court also reappreciated the entire evidence and confirmed the conviction and sentence. There is no illegality or impropriety in the findings of the trial court as well as the appellate court. I find that no kind of perversity in the appreciation of evidence also. In the absence of any kind of perversity in the appreciation of evidence this court is not inclined to reappreciate the entire evidence once again under the revisional jurisdiction under Sections 397 and 401 of the Criminal Procedure Code. Consequently, I confirm the

¶40

Crl.R.P.No.670 OF 2013

¶41

¶42

conviction and this revision petition is liable to be dismissed. 6. The learned counsel for the Revision Petitioners submit that the Revision Petitioners are willing to pay the fine amount which shall be given as compensation but they are unable to raise the fund forthwith as ordered by the courts below. He is ready to pay the fine amount within a reasonable time. The counsel for the Revision Petitioners prayed for six months' time to pay the fine amount. In a prosecution under Section 138 of the N.I.Act the compensatory aspect of remedy should be given much priority over the punitive aspect. The loss sustained to the 1^st respondent can be adequately compensated by way of compensation. Having regard to the gravity and nature of offence, six months' time can be given to the Revision Petitioners to pay the fine. Resultantly this Revision Petition is disposed of subject to the following terms.

¶43

i) The 2^nd Revision Petitioner shall undergo simple

¶44

imprisonment for one day till the rising of the court.

¶45

Crl.R.P.No.670 OF 2013

¶46

¶47

ii) The Revision Petitioners shall pay a fine of Rs.2,00,000/- (Rupees Two Lakhs only) each within a period of six months from today and same shall be given to the 1^st respondent as compensation.

¶48

iii) The 2^nd Revision Petitioner shall surrender before the trial court on or before 4/10/2013 to suffer substantive sentence of simple imprisonment as ordered above with sufficient proof to show the payment of fine.

¶49

iv) In default the 2^nd Revision Petitioner shall undergo simple imprisonment for three months.

¶50

This Criminal Revision Petition is disposed of

¶51

accordingly.

¶52

-K.HARILAL, JUDGE

¶53

MJL

Citra Fules Ltd. v. M/S. Lab & General Exports Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Citra Fules Ltd. v. M/S. Lab & General Exports Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Krishnankutty Vs Arunkumar

Ganeshan Vs State of Kerala

Sunitha Vs Johnson and Others

B.Nirmala Vs P.Shylaja

Anil Kumar, Vs State of Kerala

K. Zeenath Beevi Vs Suseela Devi T.