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Kerala High Court
Suresh vs Reetha Philip on 21 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.REV.PET NO. 735 OF 2014
AGAINST THE JUDGMENT DATED 12.03.2014 IN CRIMINAL APPEAL NO.853 OF
2008 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE,IRINJALAKUDA
ARISING OUT OF THE JUDGMENT DATED 29.11.2008 IN CC NO.275 OF 2005
OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, CHALAKUDY
REVISION PETITIONER/APPELLANT/ACCUSED:
SURESH, AGED 50 YEARS
S/O.N.R.CHANDRA, 33 ACC ROAD, PAZHANI, TAMIL NADU
(C/O.ADV.PALANI SWAMI, ANNA NAGAR, PALANI, TAMILNADU,
PARTNER OF INBORN CHEMICALS, S.S.NO.939/2A,
IYYAMPULLY VILLAGE, PALANI, KODAIKANNAL ROAD,
TAMIL NADU).
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 REETHA PHILIP, PROPRIETOR,
M/S.PRINCY AGENCIES, POTTA DESOM,
PERAMBRA VILLAGE, MUKUNDAPURAM TALUK,
REPRESENTED BY HER POWER OFATTORNEY HOLDER PHILIP A.V.,
AGED 50 YEARS, S/O.DANIAL, PUTHENKANDATHIL HOUSE,
POTTA DESOM, PERMBRA VILLAGE,
MUKUNDAPURAM TALUK, PIN- 680 689.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM -682 031.
BY ADV R1 BY SRI.C.P.UDAYABHANU
R2 BY SMT.SEENA C, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
04.04.2022, ALONG WITH CRL.REV.PET.NO.893/2014, THE COURT ON
21.05.2024 DELIVERED THE FOLLOWING:
Crl.R.P.Nos.735 and 893 of 2014
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.REV.PET NO. 893 OF 2014
AGAINST THE JUDGMENT DATED 31.03.2014 IN CRIMINAL APPEAL NO.53 OF
2009 OF THE COURT OF ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA
ARISING OUT OF THE JUDGMENT DATED 29.12.2008 IN CC NO.1336 OF
2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, CHALAKUDY
REVISION PETITIONER/APPELLANT/ACCUSED:
SURESH, AGED 45 YEARS
S/O.N R CHANDRAN, 33 ACC ROAD, PAZHANI,
TAMIL NADU, (C/O.ADV, PALANI SWAMI) ANNA NAGAR,
PALANI, TAMIL NADU, PARTNER OF INBORN CHEMICALS,
SS NO 939/2A,IYYAMPULLY VILLAGE, PALANI,
KODAIKANAL ROAD, TAMIL NADU
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.THOMAS J.ANAKKALLUNKAL
RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
1 REETHA PHILIP,
PROPRIETOR M/S.PRINCY AGENCIES, POTTA DESOM,
PERAMBRA VILLAGE, MUKUNDAPURAM TALUK,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER
PHILIP A V, AGED 50 YEARS,
S/O.DANIAL PUTHEN KANDATHIL HOUSE, POTTA DESOM,
PARAMBRA VILLAGE, MUKUNDAPURAM TALUK-680 689
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031
R2 BY SMT.SEENA C, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 04.04.2022 ALONG WITH CRL.REV.PET.NO.735/2014,
THE COURT ON 21.05.2024 DELIVERED THE FOLLOWING:
Crl.R.P.Nos.735 and 893 of 2014
3
MARY JOSEPH, J.
-----------------------
Crl.R.P.Nos.735 and 893 of 2014
-----------------------
Dated this the 21st day of May, 2024
ORDER
Crl.R.P.No.735/2014 was originated from a judgment passed by Judicial First Class Magistrate Court-II, Chalakkudy (for short 'the trial court') in C.C.No.275/2005 on 29.11.2008 and confirmed by Additional Court of Sessions, Irinjalakuda (for short 'the appellate court') in Crl.Appeal No.853/2008 on 12.03.2014.
2. Crl.R.P.No.893/2014 was originated from a judgment passed by Judicial First Class Magistrate Court-II, Chalakkudy (for short 'the trial court') in C.C.No.1336/2005 on 29.12.2008 and confirmed by Additional Court of Sessions, Irinjalakuda (for short 'the appellate court') vide judgment passed on 31.03.2014 in Crl.Appeal No.53/2009.
3. Revision petitioner in Crl.R.P.No.735/2014 is accused No.1 in C.C.No.275/2005 on the files of the trial court Crl.R.P.Nos.735 and 893 of 2014 4 and the appellant in Crl.Appeal No.853/2008 on the files of the appellate court. Revision petitioner in Crl.R.P.No.893/2014 is accused No.1 in C.C.No.1336/2005 on the files of the trial court and the appellant in Crl.Appeal No.53/2009, on the files of the appellate court.
4. Challenge was raised against concurrent findings of guilt of accused No.1 in the cases aforestated for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act'). The trial court found accused No.1 guilty of the offence punishable under Section 138 NI Act and convicted and sentenced him to undergo simple imprisonment for 8 months and to pay a sum of `80,000/- as compensation and to undergo simple imprisonment for four months in default of payment, in C.C.No.275/2005. Accused Nos.2 and 3 were found by the trial court not guilty for the offence under Section 138 NI Act and acquitted. When the judgment was assailed in appeal, the appellate court dismissed the appeal and confirmed the judgment passed by the trial court.
Crl.R.P.Nos.735 and 893 of 2014 5
5. The trial court found accused No.1 guilty of the offence under Section 138 NI Act in C.C.No.1336/2005 and convicted and sentenced him to undergo simple imprisonment for one year and to pay a sum of `4,01,814/- as compensation and to undergo simple imprisonment for 6 months in default of payment of compensation. Accused Nos.2 and 3 were found not guilty for the offence under Section 138 NI Act. When the judgment of the trial court was assailed by accused No.1, the appellate court dismissed the appeal and confirmed the finding of guilt of accused No.1 and the orders of conviction and sentence imposed on him.
6. Aggrieved by the concurrent findings of guilt, orders of conviction and sentence passed by the trial court as well as the appellate court, accused No.1 has filed the revisions on hand.
7. According to Sri.P.Vijaya Bhanu, the learned counsel for the revision petitioners, the trial court as well as the appellate court undoubtedly went illegal, improper and infirm in law as well as facts, while finding accused No.1 guilty Crl.R.P.Nos.735 and 893 of 2014 6 of the offence under Section 138 NI Act and convicting and sentencing him in both the cases. According to him, the evidence on record was not appreciated properly by the courts and therefore, judgments were passed in the manner. As per the averments made in the complaint filed to launch the prosecution, accused No.3 is a partnership firm and accused Nos.1 and 2 are its partners. According to the learned counsel, the complainant failed to establish the status of the accused and therefore, accused No.1 cannot be said to be a partner of accused No.3 as averred by the complainant. According to him, during trial, Exts.D1 and D2 were marked in evidence from the side of the accused and accused No.3 was described as a proprietary concern and one Mr.Subramanyan as it's sole proprietor. According to the accused, Mr.Subramanyan was not arrayed as an accused in the case on hand. According to the learned counsel, since accused Nos.2 and 3 were acquitted for the offence, the trial court and the appellate court were not justified in finding accused No.1 alone guilty for the offence under Section 138 NI Act. According to him, the trial court as Crl.R.P.Nos.735 and 893 of 2014 7 well as the appellate court overlooked the factum that the complainant failed to adduce any evidence to establish that accused No.1 was a partner of accused No.3. The trial court as well as the appellate court failed to notice that evidence was not forthcoming from the side of the complainant to establish that a legally enforceable debt or liability was due from the complainant. According to him, it can be found from the evidence on record that a statutory notice as contemplated under Clause (b) of proviso to Section 138 NI Act was not served by the complainant on accused No.3. Accordingly the learned counsel canvassed for allowing the Crl.Revision Petitions and to reverse the judgments passed by the trial court as well as the appellate court, concurrently finding accused No.1 guilty for the offence under Section 138 NI Act and convicting and sentencing him.
8. The learned counsel for the respondents in both the Crl.Revision Petitions argued on the contrary that Crl.Revision Petitions only deserve to be dismissed. According to him, the trial court as well as the appellate court have appreciated the Crl.R.P.Nos.735 and 893 of 2014 8 evidence on record in C.C.Nos.275/2005 and 1336/2005 in the correct perspective and therefore interference with the concurrent findings of guilt and orders of conviction and sentence passed are uncalled for.
9. Before adverting to the rival contentions raised by the respective parties, it is relevant to have a discussion in brief of the averments made by the complainant in the private complaints filed under Section 142 NI Act to launch the prosecutions under Section 138 NI Act against the revision petitioner.
10. Paragraph No.1 of the complaint in C.C.No.275/2005 being important and crucial is extracted hereunder for easy reference:
"1. The complainant is conducting a business of waste oils under the name and style of 'Princy agencies' as her sole proprietorship concern. The 1 st and 2nd accused are the partners of the 3rd accused firm. The 3rd accused firm is dealer of waste oils at Palani. The accused issued a cheque for Rs.80,000/- (Rupee Eighty Thousand only) dt.24-06- 2004, bearing No.185411 of the Palani P.014 branch of The Indian Bank, to the complainant for discharging a part of a legally enforceable liability. The cheque was executed by the accused at the office of the complainant at Potta Desom."
Crl.R.P.Nos.735 and 893 of 2014 9 Paragraph No.1 of the complaint in C.C.No.1336/2005 is also extracted hereunder:
"1. The complainant is conducting a business of waste oils under the name and style of 'Princy agencies' as her sole proprietorship concern. The 1 st and 2nd accused are the partners of the 3rd accused firm. The 3 rd accused firm is dealer of waste oils at Palani. The accused issued a cheque for Rs.4,01,814/- (Rupee Four lakh One Thousand Eight Hundred and Fourteen only) dt.2-06-2005, bearing No.185420 of the Palani P.014 branch of The Indian Bank, to the complainant for discharging a part of a legally enforceable liability. The cheque was executed by the accused at the office of the complainant at Potta Desom."
As revealed from the above extracts, pleadings were raised in the complaints to the effect that accused Nos.1 and 2 are the partners of accused No.3, which is a firm dealing with waste oils at Palani. It was pleaded further in CC No.1336/2005 that a cheque dated 02.06.2005 bearing No.185420 for a sum of `4,01,814/- was drawn from the Palani Branch of Indian Bank by the accused and issued to the complainant to discharge a legally enforceable debt owed to her. It was stated in CC No.275/2005 that a cheque dated Crl.R.P.Nos.735 and 893 of 2014 10 24.06.2004, bearing No.185411 for a sum of `80,000/- was drawn from the Palani Branch of the Indian Bank by the accused and issued to the complainant to discharge a legally enforceable debt owed to her. It is stated further that the cheques were executed by the accused at the office of the complainant situated at Potta Desom.
11. In the cause title of both complaints, the complainant was described as a proprietorship firm namely M/s.Princy Agencies and represented by Mrs.Reetha Philip, it's Proprietor who has executed a power of attorney marked in evidence as Ext.P15 in favour of one Mr.Philip.A.V. The person alleged as the Proprietor of the complainant was examined as PW1. According to her, she had gone to the office of accused No.3 twice and the concern run was introduced to her as a partnership firm. According to her `4,81,214/- was totally owed by accused No.3 to M/s.Princy Agencies. When a suggestion was put to her in cross examination that Ext.P1 was not issued to her by the accused, she denied that and deposed assertively that it was signed by accused No.1. Crl.R.P.Nos.735 and 893 of 2014 11
12. It was stated in the complaints that accused No.3 was a firm dealing in waste oil at Palani and accused Nos.1 and 2 were it's partners. It was further stated that `4,01,814/- and `80,000/- respectively were due from the accused to the complainant and the accused had drawn cheques for the respective sums bearing Nos.185420 dated 02.06.2005 and 185411 dated 24.06.2004 from Palani, P.014 branch of the Indian Bank and issued to the complainant to discharge the legally enforceable liability, in part.
13. It was further stated that the cheques forwarded for collection through State Bank of Travancore, Chalakkudy Branch were dishonoured by the banker of the accused for insufficient funds in his account to honour it and the factum of dishonour was intimated to the complainant by the bank on 26.11.2004 and 16.06.2005 respectively. It was stated furthermore that registered lawyer notices dated 08.12.2004 and 29.06.2005 respectively were issued by the complainant in the address where accused ordinarily resides, calling upon him to pay the amount covered by the cheques.
Crl.R.P.Nos.735 and 893 of 2014 12
14. Notices were returned by the accused. The amount due to the complainant were also not paid. Thus, the accused was alleged as committed the offence under Section 138 NI Act. Therefore, it is not clear from the pleadings, which among the accused had drawn the cheques and issued to the complainant, and sent for collection to the bank account maintained by which of the accused and returned bounced. It is not clear from the pleadings in the complaint, against which of the accused the statutory notices were issued.
15. Paragraph 2 of the proof affidavit filed by the complainant in lieu of examination in chief in C.C.No.1336/2005 reads:
"ഞാൻ പ്രതികൾക്ക് വേസ്റ്റ് ഓയിൽ വിറ്റ വകയിൽ എനിക്ക് മൊത്തം 4,81,814/- (നാല് ലക്ഷത്തി എൺപത്തൊന്നായിരത്തി എണ്ണൂറ്റി പതിനാല് രൂപ) തരുവാനുണ്ട്. ആയതിന്റെ ഒരു ഭാഗം തരുന്നതിലേക്ക് വേണ്ടി എനിക്ക് 3-ാം പ്രതി സ്ഥാപനത്തിന്റെ പാർട്ട്ണർമാരായ 1, 2 പ്രതികൾ കൂടി 2/06/2005 തിയ്യതി വച്ച് ഇന്ത്യൻ ബാങ്ക് പളനി ബ്രാഞ്ചിന്റെ 4,01,814/- (നാലു ലക്ഷത്തി ഒരായിരത്തി എണ്ണൂറ്റി പതിനാല്) രൂപയ്ക്കുള്ള 185420 -)0 നമ്പറ് ചെക്ക് ഒപ്പിട്ടു തന്നു. പ്രസ്തുത ചെക്ക് ഞാൻ കോടതി മുൻപാകെ ഹാജരാക്കിയിട്ടുണ്ട്. ആയതിനെ എക്സിബിറ്റ് പി. 1 ആയി മാർക്ക് ചെയ്യേണ്ടതാണ്."
Paragraph 2 of the proof affidavit filed by the complainant in lieu of examination in chief in C.C.No.275/2005 reads:
Crl.R.P.Nos.735 and 893 of 2014 13 "ഞാൻ പ്രതികൾക്ക് വേസ്റ്റ് ഓയിൽ വിറ്റ വകയിൽ എനിക്ക് മൊത്തം 4,81,814/- (നാല് ലക്ഷത്തി എൺപത്തൊന്നായിരത്തി എണ്ണൂറ്റി പതിനാല് ) രൂപ തരുവാനുണ്ട്. ആയതിന്റെ ഒരു ഭാഗം തരുന്നതിലേക്ക് വേണ്ടി എനിക്ക് 3-ാം പ്രതി സ്ഥാപനത്തിന്റെ പാർട്ട്ണർമാരായ 1, 2 പ്രതികൾ കൂടി 24/06/2004 തിയ്യതി വച്ച് ഇന്ത്യൻ ബാങ്ക് പളനി ബ്രാഞ്ചിന്റെ 80,000/-- (എൺപതിനായിരം) രൂപയ്ക്കുള്ള 185411-)0 നമ്പറ് ചെക്ക് 1-ാം പ്രതി ഒപ്പിട്ട് എനിക്ക് തന്നു. പ്രസ്തുത ചെക്ക് ഞാൻ കോടതി മുൻപാകെ ഹാജരാക്കിയിട്ടുണ്ട്. ആയതിനെ എക്സിബിറ്റ് പി. 1 ആയി മാർക്ക് ചെയ്യേണ്ടതാണ്."
Therefore, it was found specifically stated in the proof affidavits that each of the cheque was signed by accused Nos.1 and 2 and issued respectively on 24.06.2004 and 02.06.2005 towards part payment of the dues to the complainant and that was proposed to be marked in evidence in each case as Ext.P1.
16. 3rd paragraph of the proof affidavit filed in C.C.No.1336/2005 reads:
"എക്സിബിറ്റ് പി. 1 ൽ കാണുന്ന ഒപ്പ് 1-)0 പ്രതിയുടെതാണ്. ആയത് 1-)0 പ്രതി എന്റെ മുൻപിൽ വച്ച് ഇട്ടതാണ്. 1-)0 പ്രതി ചെക്ക് ഒപ്പിട്ട് തരുന്ന സമയം 2-)0 പ്രതി 1-)0 പ്രതിയുടെ ഒപ്പം ഉണ്ടായിരുന്നു. 3-)0 പ്രതി സ്ഥാപനത്തിലെ മറ്റൊരു പാർട്ട്ണർ ആയ 2-)0 പ്രതിയുടെ അറിവോടും സമ്മതത്തോടും കൂടിയാണ് 1-)0 പ്രതി എക്സിബിറ്റ് പി. 1 ചെക്ക് ഒപ്പിട്ട് എനിക്ക് തന്നത്. എന്റെ സ്ഥാപനത്തിലേക്ക് തരുവാനുള്ള ബാക്കി തുകയായ 4,01,814/- (നാല് ലക്ഷത്തി ഒരായിരത്തി എണ്ണൂറ്റി പതിനാല്) രൂപയ്ക്ക് തുല്യമാണ് എന്നും ബാങ്കിൽ ചെക്ക് Crl.R.P.Nos.735 and 893 of 2014 14 മാറുന്നതിനാവശ്യമായ പണമുണ്ട് എന്നും ചെക്ക് ബാങ്കിൽ ഹാജരാക്കിയാൽ പണം കിട്ടും എന്നും പ്രതികൾ എന്നെ പറഞ്ഞ് വിശ്വസിപ്പിച്ചാണ് 1-)0 പ്രതി എക്സിബിറ്റ് പി. 1 ചെക്ക് എനിക്ക് തന്നത് ."
3rd paragraph of the proof affidavit filed in C.C.No.275/2005 reads:
"എക്സിബിറ്റ് പി. 1 ൽ കാണുന്ന ഒപ്പ് 1-)0 പ്രതിയുടെതാണ്. ആയത് 1-)0 പ്രതി എന്റെ മുൻപിൽ വച്ച് ഇട്ടതാണ്. 1-)0 പ്രതി ചെക്ക് ഒപ്പിട്ട് തരുന്ന സമയം 2-)0 പ്രതി 1-)0 പ്രതിയുടെ ഒപ്പം ഉണ്ടായിരുന്നു. 3-)0 പ്രതി സ്ഥാപനത്തിലെ മറ്റൊരു പാർട്ട്ണർ ആയ 2-)0 പ്രതിയുടെ അറിവോടും സമ്മതത്തോടും കൂടിയാണ് 1-)0 പ്രതി എക്സിബിറ്റ് പി. 1 ചെക്ക് ഒപ്പിട്ട് എനിക്ക് തന്നത്. എന്റെ സ്ഥാപനത്തിലേക്ക് തരുവാനുള്ള പണത്തിന്റെ ഒരു ഗഡുവായ 80,000/-- (എൺപതിനായിരം) രൂപയ്ക്ക് തുല്യമാണ് എന്നും ബാങ്കിൽ ചെക്ക് മാറുന്നതിനാവശ്യമായ പണമുണ്ട് എന്നും ചെക്ക് ബാങ്കിൽ ഹാജരാക്കിയാൽ പണം കിട്ടും എന്നും പ്രതികൾ എന്നെ പറഞ്ഞ് വിശ്വസിപ്പിച്ചാണ് 1-)0 പ്രതി എക്സിബിറ്റ് പി. 1 ചെക്ക് എനിക്ക് തന്നത് ."
It is clear from the above that certain relevant factors omitted to be stated by the complainant in the complaints were supplied in the proof affidavits. Those were brought in evidence by the accused but for want of support of pleadings regarding those in the complaint were irrelevant and inadmissible in evidence.
Crl.R.P.Nos.735 and 893 of 2014 15
17. Moreover, the complainant was not consistent in her stand about the person who signed Ext.P1, as it was stated by her at one part of the complaints that the cheques were signed jointly by accused Nos.1 and 2 and issued to the complainant but, in another part, she has stated that the signature in Ext.P1 was that of accused No.1 and authored by him before her. According to her accused No.2 was also with accused No.1 then. She was also inconsistent in her version when she says initially that the cheques were issued to discharge only a part of the total dues of `4,81,814/- and says later that those were issued to discharge `4,01,814/- itself. It is clear from the face of Ext.P1 marked in each case that those were issued for `4,01,814/- and `80,000/- respectively. Moreover it was stated by the complainant in the proof affidavits that Ext.P1 was sent for collection through State Bank of Travancore to Indian Bank, Palani Branch where an account was maintained by accused No.3 and was returned bounced due to insufficiency of funds there to honour those. With regard to the issuance of the legal notices, it was stated by the Crl.R.P.Nos.735 and 893 of 2014 16 complainant in the proof affidavits that those were issued to all accused. On a perusal of the copy of the notices marked in evidence in each case as Ext.P4, this Court is also convinced that it was issued to all the three accused.
18. PW1 was found cross examined by the accused elaborately. Her status as proprietorship was challenged. According to PW1, accounts were properly and regularly maintained by the concern and it has sales tax registration also. But, she failed to produce any of those to answer the challenge raised against her status as proprietor of the complainant concern. She also deposed during cross examination that the complainant concern was engaged in scrap business. That is against her pleadings in the complaints that the 3rd accused was a dealer in waste oil. When confronted with, she said that what was pleaded in the complaint is incorrect. Therefore, that is also a material inconsistency to affect the prosecutions adversely.
19. Though Ext.P1 was stated in the proof affidavits as signed by accused Nos.1 and 2 jointly, during cross Crl.R.P.Nos.735 and 893 of 2014 17 examination she has gone to the extent of stating that the cheques were signed by accused No.1 alone. She also deposed as having no proper idea about the status of accused No.1 though she deposed as if there were several business dealings with the accused. However, the suggestion specifically put to her during cross examination in each case that the prosecutions in question were launched by misusing the cheques lost from the accused, was denied by her.
20. Therefore, it appears from the complaints filed to launch the prosecutions on hand that the 3 rd accused was referred to as a firm and accused Nos.1 and 2 as it's partners. 3rd accused firm in each case was depicted as indebted to the complainant for a total sum of `4,81,814/-, to discharge which liability, Ext.P1 cheques were drawn from the bank where account was maintained by accused No.3 and issued to the complainant. Those were dishonoured on presentation and that was the cause for the prosecutions in question to be initiated against the accused.
Crl.R.P.Nos.735 and 893 of 2014 18
21. Section 138 NI Act speaks about an offence attracted in the case of a bounced cheque for reasons of insufficiency of funds in the account of its drawer to honour the cheque or the amount exceeding the arrangements for payment made with the banker by virtue of an agreement. Therefore, as dealt with in the provision, the following ingredients must be fulfilled for the offence under Section 138 NI Act to be attracted.
(a) issuance of a cheque
(b) presentation of the same
(c) dishonour of it for reasons, 'insufficienty of funds', or 'exceeds the arrangement'.
(d) service of notice on the persons sought to be made liable, and
(e) non-payment of the amount covered by the cheque within 15 days from the date of receipt of the notice.
Section 138 NI Act speaks about commission of offence thereunder by an individual whereas Section 141, about commission of offences by companies. Explanation appended to the provision clarified that a company means any body corporate and extended it's application to even a firm or other association of individuals.
Crl.R.P.Nos.735 and 893 of 2014 19
22. Section 141 NI Act reads:
"141. Offences by companies.--
(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
PROVIDED that nothing contained in this sub- section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
PROVIDED FURTHER that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.
(2) Notwithstanding anything contained in sub-
section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.--For the purposes of this section, Crl.R.P.Nos.735 and 893 of 2014 20
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm."
It is a deeming provision and it is envisaged thereunder that when an offence under Section 138 NI Act is allegedly committed by a company, every person who was in charge of and responsible for the conduct of the business affairs of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
23. In the case on hand the allegation of the complainant was that Ext.P1 issued by the accused in both the cases to discharge the total monetary liability of `4,81,814/-, due to the complainant, was dishonoured for the reason, insufficiency of funds. Therefore, the amount was allegedly due from accused No.3. According to PW1, Ext.P1 was signed by accused Nos.1 and 2, but she clarified later that the signature was authored only by accused No.1. Accused No.3 was alleged as the offender in the case in question and it being Crl.R.P.Nos.735 and 893 of 2014 21 a firm, there is nothing wrong in accused Nos.1 or 2 to act as it's authorised representative, to author signature in Ext.P1 and to issue the same to the creditor towards discharge of the liability outstanding to the complainant. But, it is not clear from Ext.P1, who authored the signature there. The capacity of the person who signed it also is not mentioned there. Therefore, Ext.P1 can only be considered as one issued by it's signatory in his individual capacity and not in his capacity as a partner of accused No.3.
24. Even if Ext.P1 was taken as issued by accused No.1 as the partner and authorised signatory of accused No.3, the complaints filed to launch the prosecutions suffer for want of specific pleadings there that accused Nos.1 and 2 were in charge of and responsible to the company at the relevant time, the offence was allegedly committed by the company. It is clear from Section 141 NI Act, the deeming provision would only apply, when it was pleaded specifically in the complaint that the persons shown as partners of accused No.3 were in charge of and responsible to the company for the conduct of Crl.R.P.Nos.735 and 893 of 2014 22 it's business and then alone, they can also be deemed to have committed the offence committed by the accused No.3 under Section 138 NI Act. Without allegations of those nature being incorporated in the complaints filed to launch the prosecutions, they cannot be deemed to have committed the offence under Section 138 NI Act alongwith accused No.3.
25. In the case on hand, on a scrutiny of the complaints which formed basis for the prosecutions, it is revealed that pleadings of the nature referred to above are not incorporated there and for the reason itself they cannot be deemed to have been guilty for the offence committed by accused No.3. Though it was alleged in the complaint that accused Nos.1 and 2 were partners of accused No.3, in the cause title, the status of accused No.1 was shown as partner and that of accused No.2 as Managing Partner. During cross examination, her specific version as PW1 was that accused Nos. 1 and 2 were partners of accused No.3. The status of accused Nos.1 and 2, as partners of accused No.3 were not disputed by them. The legal notices evidenced as sent to each of the accused in their Crl.R.P.Nos.735 and 893 of 2014 23 respective status as shown in the complaints were served on each of them, but, they did not sent reply notices controverting the respective status.
26. When the liability was established as due from accused No.3 to the complainant, when Ext.P1 was established as drawn by accused No.3 through it's authorised signatory and issued to the complainant, when it was returned bounced for the reason insufficiency of funds in the account maintained by accused No.3 with it's banker and when the legal notices issued were not responded to by the accused, the offence under Section 138 NI Act undoubtedly would be attracted against accused No.3. In the cause title of the complaints, accused No.3 was shown as represented by accused No.2, in his capacity as Managing Partner.
27. Criminal liability for an offence under Section 138 NI Act committed by accused No.3, can be fastened on it's partners constituting it only by invoking Section 141 NI Act, the deeming provision. The accused who were holding the status respectively as partner and Managing Partner of the Crl.R.P.Nos.735 and 893 of 2014 24 firm, in their capacity as such, can only be deemed to be liable for the offence committed by accused No.3, when it was specifically pleaded in the complaint that they were in charge of and responsible for the conduct of the business of accused No.3, at the relevant time when the offence was committed by the latter.
28. It is unfortunate that pleadings as aforestated were not found made in the complaints. Therefore, accused Nos.1 and 2 cannot be deemed to have been guilty for the offence under Section 138 NI Act.
29. Apart from all the above, accused No.3 stands acquitted by the trial court by judgment passed in C.C.Nos.275/2005 and 1336/2005. The judgments were assailed in Crl.Appeal Nos.853/2008 and 53/2009, vide judgment passed by the appellate court in the Crl. Appeals, the judgments of the trial court were confirmed. No challenge was raised against the judgments of the appellate court by the complainant and therefore, those have become final. Since accused No.3 was found not guilty of the offence under Section Crl.R.P.Nos.735 and 893 of 2014 25 138 NI Act, the revision petitioner cannot be deemed to have committed the offence by invoking the jurisdiction under Section 141 NI Act.
30. The discussion hereinabove, made it crystal clear that the trial court as well as the appellate court have committed grave error while convicting accused No.1 for the offence under Section 138 NI Act, without entering into a finding of guilt of accused No.3 under Section 138 NI Act. The judgments of the trial court as well as of the appellate court in C.C.Nos.275/2005 and 1336/2005 undoubtedly are illegal, improper and infirm in all respects and are only to be reversed.
In the result, Crl.Revision Petitions are allowed and the judgments of the trial court as well as the appellate court in C.C.Nos.275/2005 and 1336/2005 were reversed. Accused No.1, the revision petitioner in both revision petitions are acquitted for the offence under Section 138 NI Act.
Sd/-
MARY JOSEPH JUDGE NAB