IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1290 of 2003()
1. THE MUVATTUPUZHA CITTY FUND
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. M.SAHIR, PUTHENPURAYIL HOUSE,
For Petitioner :SRI.PEEYUS A.KOTTAM
For Respondent :SRI.JOHN JOSEPH(ROY)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/05/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.1290 OF 2003
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Dated 28th May, 2010
O R D E R
Petitioner, the accused in
C.C.227/1998 on the file of Judicial First
Class Magistrate-I, Muvattupuzha was
convicted and sentenced to simple
imprisonment for one month and compensation
of Rs.40,000/- for the offence under
Section 138 of Negotiable Instruments Act.
Petitioner challenged the conviction and
sentence before the Sessions court,
Ernakulam in Crl.A.725/2001. Learned
Sessions Judge on re-appreciation of the
evidence confirmed the conviction and
sentence and dismissed the appeal. It is
challenged in this revision.
2. Learned counsel appearing for
CRRP 1290/03 2
the petitioner and second respondent were
heard.
3. Argument of the learned counsel
is that Ext.P1 cheque was also signed by
Noushad, partner of the partnership firm apart
from the petitioner and he was not made an
accused and Ext.P1 dishonoured cheque was not
issued towards discharge of any liability and
in fact, it was signed and kept at the office
of the firm which was obtained by the second
respondent in collusion with the said Noushad
and learned Magistrate and learned Sessions
Judge did not properly appreciate the evidence
and the conviction is not legal or sustainable.
It was argued that when Noushad who is one of
the drawers of the cheque was not made an
accused, and Ext.P1 cheque was allegedly issued
by the partnership firm, petitioner alone
should not have been convicted and in any case,
CRRP 1290/03 3
the sentence may be modified.
4. It is not disputed by the petitioner
that he is the Managing partner of the
partnership firm by name Muvattupuzha Chitty
Funds. His case is only that though he is the
Managing partner, the firm was originally
started along with late Hamsa and after the
death of Hamsa, Noushad was taken as the
partner of the firm and they were running the
partnership business. Ext.P1 cheque which was
dishonoured for want of sufficient funds as
proved by the evidence of PW2, the accountant
of the bank, was issued in the account
maintained by Muvattupuzha Chitty Funds. This
aspect is not in dispute. The only contention
is that as the cheque is signed by partner
Noushad also and the said Noushad is not made
an accused, petitioner cannot be convicted. It
is also contended that Ext.P1 cheque was not
CRRP 1290/03 4
issued to the petitioner, but it was given to
the petitioner by Noushad and cheque was in
fact signed and kept at the chitty office.
5. Learned Magistrate and learned
Sessions Judge appreciated the evidence found
that Ext.P1 cheque was issued to the second
respondent towards the amount due to him as he
had subscribed to a chitty conducted by
Muvattupuzha chitty Funds. Apart from cross
examining PW1, petitioner did not adduce any
evidence to substantiate his contention that
the cheque was signed and kept at the office.
Evidence of PW1 conclusively established that
second respondent subscribed to a chitty
conducted by Muvattupuzha Chitty Funds and
towards the chitty amount, second respondent is
entitled to get Rs.40,200/- from the firm and
towards payment of that amount Ext.P1 cheque
was issued. I find no reason whatsoever to
CRRP 1290/03 5
interfere with the said factual findings, as
that finding of the courts below is in
accordance with the evidence. Though
petitioner contended that he had signed Ext.P1
cheque and kept at the chitty office and Ext.P1
was handed over to the second respondent by
Noushad the other partner, in collusion with
the second respondent, there is no evidence
whatsoever in support of the said case. Even
when petitioner received notice sent by
second respondent demanding the amount covered
by the dishonoured cheque he did not send a
reply denying the liability. It will not be the
case if the cheque was not issued towards
payment of the amount due by the firm and that
too if a signed blank cheque was misused by the
partner of the firm and based on that cheque a
claim was raised. On the facts, evidence and
circumstances of the case findings of the
CRRP 1290/03 6
courts below that Ext.P1 cheque was issued by
the partnership firm to the second respondent
towards payment of the chitty amount due is
absolutely correct. Evidence also establish
that cheque was dishonoured for want of
sufficient funds and second respondent had
complied with all the statutory formalities
provided under Section 138 of Negotiable
Instruments Act.
6. Though Learned counsel argued that
failure to implicate the other partner of the
firm is fatal, I cannot agree with the
submission. Section 138 of Negotiable
Instruments Act provides that whenever any
cheque drawn by a person, on an account
maintained by him with a banker for payment of
any amount of money to another person, from
out of that account, for the discharge of any
debt or liability either in whole or in part
CRRP 1290/03 7
is dishonoured for insufficient funds and the
drawer on failure to pay the amount within the
period, on demand intimating the dishonour,
shall be punishable for the offence as provided
thereunder. Section 141 provides that 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.
Under explanation clause (a) to the Section, a
company means any body corporate and includes a
firm or other association of individuals.
Therefore, as provided under Sub Section (1)
of Section 141, it is not only the firm but
every partner who at the time of the offence
CRRP 1290/03 8
was in charge of and was responsible to the
firm, for the conduct or business of the firm
as well as the firm shall be deemed to be
guilty of the offence. Therefore, petitioner
cannot contend that he is not liable. He is
also not entitled to contend that as the other
partner, who is also liable, was not implicated
and so he cannot be convicted. Therefore, the
conviction cannot be challenged on the ground
that Noushad, the other partner was not made
an accused. In such circumstances, conviction
of the petitioner for the offence under Section
138 of Negotiable Instruments Act is perfectly
legal.
7. Then the only question is regarding
the sentence. Considering the entire facts and
circumstances of the case, interest of justice
will be met, if the sentence is modified to
imprisonment till rising of the court and
CRRP 1290/03 9
compensation of Rs.45,000/- to the second
respondent and in default simple imprisonment
for one month.
Revision petition is allowed. Conviction
of the petitioner for the offence under Section
138 of Negotiable Instruments Act is confirmed.
Sentence is modified. Petitioner is sentenced
to imprisonment till rising of court and a
compensation of Rs.45,000/- (Rupees forty five
thousand only) to second respondent and in
default simple imprisonment for one month.
Petitioner is directed to appear before the
learned Magistrate on 28/6/2010.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.