Concurrent findings in criminal liability cases require clear evidence for revision; absence of perversity limits appellate interference.

ORDER

The third accused in C.C No.249/2004, who suffered concurrent conviction along with the other two accused, for the commission of offence under Section 138 of the Negotiable Instruments Act , from the Judicial First Class Magistrate Court-IV and the Second Additional Sessions Court, Kozhikode, has filed this revision challenging the verdicts of the aforesaid Courts.

2. The complaint was filed by the first respondent firm against the first accused firm represented by the second accused as its Managing Partner and the petitioner herein as Partner. The allegation against the accused was that an amount of Rs.30,99,247.25 stood due from the accused in connection with the business transaction with the complainant, and that after discussions and talks, the liability of the accused was fixed as Rs.23,99,247.25 after adjusting an amount of Rs.7,00,000/- paid by another firm. Towards the payment of the above amount of Rs.23,99,247.25, the accused are said to have issued three cheques. Since the above three cheques were dishonoured for the reason that it exceeded arrangements, the complainant issued statutory notice to all the three accused. The petitioner herein received lawyer notice but the other two accused got it returned as unclaimed. Since the accused did not care to make payment of the cheque amount as demanded in the notice, the complainant instituted criminal prosecution against them.

3. Before the Trial Court, the Power of Attorney Holder of the complainant was examined as PW1 and 17 documents were marked as Exts.P1 to P17. From the part of the accused, one witness was examined as DW1 and Ext.D1 series were marked. Three third party documents were marked as Exts.X1 to X3. After evaluating the aforesaid evidence and hearing both sides, the learned Magistrate found the accused guilty of commission of offence under Section 138 of the Negotiable Instruments Act and convicted them thereunder. The first accused firm was sentenced to pay a fine of Rs.1,00,000/-. The second accused and the petitioner herein were sentenced to undergo simple imprisonment for one year and fine Rs.10,00,000/- each. The fine amount, if realised, was ordered to be paid to the complainant as compensation under Section 357 (1) Cr.P.C. Though the petitioner and the other accused took up the matter in separate appeals, the appeal filed by accused Nos.1 and 2 were dismissed consequent to the dismissal of the delay condonation petition filed by them. The accused Nos.1 and 2 challenged the dismissal of the delay condonation petition and appeal by filing Crl.R.P No.3249/2009 before this Court. As per the order dated 17.12.2014, the above revision petition was allowed in part reducing the sentence of imprisonment awarded to the second accused to imprisonment till rising of the Court, while retaining the direction to pay fine Rs.10,00,000/-, with a default clause of simple imprisonment for six months, as such. Accused Nos.1 and 2 were also granted three months’ time to make payment of the fine amount, which was ordered to be given as compensation to the complainant under Section 357 (1)(b) Cr.P.C.

4. The appeal filed by the petitioner herein as Crl.A No.202/2007 was allowed in part modifying the sentence awarded by the Trial Court to fine Rs.10,00,000/- with a default clause of simple imprisonment for six months. However, the Appellate Court confirmed the conviction of the petitioner for the commission of offence under Section 138 of the N.I Act. The present revision is directed against the aforesaid judgment of the Appellate Court.

4. Heard the learned counsel for the revision petitioner, the learned counsel for the first respondent, and the learned Public