IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 286 of 2001()
1. K.K. BALAKRISHNAN
... Petitioner
Vs
1. P.B. HAMSA
... Respondent
For Petitioner :SRI.ANIL THOMAS(T)
For Respondent :SRI.K.G.SARATHKUMAR
The Hon'ble MR. Justice A.K.BASHEER
Dated :02/06/2008
O R D E R
A.K.BASHEER, J.
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Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002
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Dated this the 2nd day of June 2008
ORDER
These three revision petitions are by the common accused
who was prosecuted for the offence punishable under Section 138
of the Negotiable Instruments Act at the instance of three different
complainants. Since a common issue arises for consideration in
these cases, they are being disposed of by this common order.
2. Petitioner who was stated to be the President of a Co-
operative Society in the name and style of ‘Sasya’ was prosecuted
along with the Secretary of the Society for the offence under
Section 138 of the Act. The gist of the allegation against the
petitioner and the co-accused was that they had purchased large
quantities of vegetables from the complainants who were vending
vegetables in the Ernakulam market.
3. The alleged purchases were made by the two accused in
the year 1995. The cheques issued by the petitioner and the co-
accused who was stated to be the Secretary of the Society (he
passed away before the trial commenced) were dishonoured when
they were presented for encashment. The statutory notices issued
Crl.R.P.Nos.286, 326, 943
OF 2001, 167 of 2002
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by the complainants did not evoke any response. It was therefore
that the complaints were filed against the petitioner and the co-
accused. The trial court found the petitioner, who alone faced trial,
guilty and convicted and sentenced him to undergo imprisonment
for various terms and also to pay fine. The learned Sessions Judge
before whom the appeals came for consideration confirmed the
order of conviction. However, the sentence was reduced.
4. It is contended by Miss.Reshmi, learned counsel for the
common petitioner that the courts below were not justified in
holding the petitioners guilty in the above cases in as much as the
society was not impleaded in the complaints. More importantly,
there was no averment in the complaint that petitioner in his
capacity as the President was in charge of or responsible for the
affairs of the society. There was also no averment that the
petitioner had made the purchase for and on behalf of the society
or as authorised by it. Even assuming the petitioner had signed the
cheque as a co-signatory along with the Secretary, since the society
was not arraigned as one of the accused, the complaints ought to
have been dismissed. It is contended that the courts below were
Crl.R.P.Nos.286, 326, 943
OF 2001, 167 of 2002
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not justified in overlooking the statutory mandates contained in
Sections 138 and 141 of the Act.
5. Learned counsel has taken me through the averments in
the three complaints. It is true that in the cause title of the
complaint, petitioner was described as “President, Sasya,
Ernakulam District Fruits and Vegetables Marketing Co-Operative
Society Limited.” But the specific allegation in the complaint
reads thus: “accused persons purchased vegetables from the
complainant under the condition that they will pay the amount
jointly. They jointly issued a cheque . . . . . .”. It is true that there
was a specific averment that accused were the President and
Secretary of the Society in question. There was no other averment
to indicate that petitioner or the co-accused in their capacity as the
President and Secretary respectively of the Society were in charge
of or responsible for the affairs of the society.
6. I have also perused the oral testimony of the respective
complainants in the three cases. The complainants have not stated
anything about the duties and responsibilities of the President or
the Secretary and also whether the petitioner along with the
Crl.R.P.Nos.286, 326, 943
OF 2001, 167 of 2002
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Secretary had made the purchases for and on behalf of the Society
or as authorised by it. Learned counsel for the petitioner has
invited my attention to the following decisions of their Lordships of
the Supreme Court. Saroj Kumar Poddar V. State (NCT of
Delhi) and another [(2007) 3 SCC 693] and Sabitha
Ramamurthy and another V. R.B.S.Channabasavaradhya
[(2006) 10 SCC 581].
7. In Sabitha Ramamurthy’s case (supra), Supreme Court held
that it is necessary to specifically aver in a complaint under Section
141 that at the time the offence was committed, the accused person
was in charge of, and responsible for the conduct of business of the
company. Their Lordships held that such an averment is an
essential requirement of Section 141 and has to be specifically
made in a complaint. Without such averment, the requirements of
Section 141 cannot be said to be satisfied. In Saroj Kumar’s case
(supra) also a similar view was taken by the apex court.
8. In Criminal R.P.286/01, which arose from C.C.67/1998, the
trial court found the petitioner guilty and convicted and sentenced
him to undergo rigorous imprisonment for four months and to pay a
Crl.R.P.Nos.286, 326, 943
OF 2001, 167 of 2002
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sum of Rs.6,000/- to be paid as compensation under Section 357(3)
of the Code of Criminal procedure. In appeal, the substantive
sentence was reduced and petitioner was directed to suffer
imprisonment till the rising of the court. He was further directed to
pay an amount of Rs.12,500/- as fine with a default sentence. It was
further directed that if the fine amount was realised 12,000/- shall
be paid to the complainant as compensation.
9. In Crl.R.P.326/01, which arose from C.C.68/1998,
petitioner was sentenced to undergo rigorous imprisonment for 8
months and to pay a compensation of Rs.15,000/- under Section 357
(3) of the Code. In appeal, the substantive sentence of
imprisonment was reduced to imprisonment till the rising of the
court. Petitioner was directed to pay Rs.23,500/- as fine, out of
which Rs.22,500/- was directed to be paid to the complainant as
compensation.
10. In Criminal R.P.943/01, which arose from C.C.69/98, the
trial court convicted and sentenced the petitioner to undergo
rigorous imprisonment for four months and to pay a fine of
Rs.14,600/- out of which RS.13,600/- was directed to be paid to the
Crl.R.P.Nos.286, 326, 943
OF 2001, 167 of 2002
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complainant as compensation. In appeal, the substantive sentence
of imprisonment was reduced to three months’ simple
imprisonment and the default sentence was reduced to one month.
11. Having heard learned counsel for the petitioner and
having perused the materials available on record, I am satisfied
that petitioner is entitled to get the benefit of the dictum laid down
by their Lordships of the Supreme Court in the two decisions cited
supra. Therefore, the order of conviction and sentence passed
against the petitioner in the three cases is set aside. Petitioner is
found not guilty and he is acquitted.
Crl.R.P.167/02:
12. Petitioner who was tried for the offence punishable under
Section 138 of the Negotiable Instruments Act in C.C.64/98 on the
file of the Additional Chief Judicial Magistrate’s Court, Ernakulam
was found guilty. He had challenged the above order of conviction
and sentence before the Sessions Court, Ernakulam in Criminal
Appeal 299/2000. The appeal was dismissed by the learned Vth
Additional Sessions Judge for the reason that the petitioner had
Crl.R.P.Nos.286, 326, 943
OF 2001, 167 of 2002
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failed to take steps to issue notice to the respondent
No.1/complainant.
Having heard learned counsel for the petitioner and having
perused the materials available on record, I am satisfied that the
petitioner is entitled to get an another opportunity to prosecute the
above appeal. Therefore, the impugned order is set aside. The
case is remitted back to the appellate court for disposal in
accordance with law. Petitioner shall appear before the appellate
court on September 15, 2008.
(A.K.BASHEER, JUDGE)
jes
Crl.R.P.Nos.286, 326, 943
OF 2001, 167 of 2002
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A.K.BASHEER, J.
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Crl.R.P.Nos.286, 326, 943 OF
2001, 167 of 2002– – – – – – – – – – – – – – – – – – – – – – – – – – –
ORDER
Dated 2nd June 2008