IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3149 of 2005()
1. N.DILEEP KUMAR, S/O.NARAYANAN, AGED 35,
... Petitioner
Vs
1. SHAAN FINANCE PVT. LTD, 6TH FLOOR, 611,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.JAIJI ITTEN
For Respondent :SRI.G.HARIHARAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :16/12/2008
O R D E R
M.N. KRISHNAN, J.
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CRIMINAL.R.P. NO. 3149 OF 2005
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Dated this the 16th day of December, 2008.
O R D E R
This revision is preferred against the judgment of the VI
Additional Sessions Judge, Ernakulam in Crl.A.601/04. That
appeal was preferred against the conviction and sentence
passed in C.C.625/00 by the Chief Judicial Magistrate-
Ernakulam. The Chief Judicial Magistrate found the accused
guilty u/s 138 of the N.I. Act and sentenced him to undergo
simple imprisonment for a period of four months and to pay
a compensation of Rs.35,000/- and in default to undergo a
further imprisonment for one month. In appeal the said
conviction and sentence was confirmed by the Sessions
Judge. It is against that decision the accused has come up in
revision.
2. The three points argued by the learned counsel for
the revision petitioner are;
(1) Regarding the competency of the person to
prosecute the matter.
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(2) Regarding the non-compliance of the statutory
provision u/s 138 of the N.I. Act.
(3) Proof regarding the actual transaction.
3. The complainant before the Court is a finance
company and it is represented by his power of attorney who
is the officer of that finance Company. Both the Courts
below found that there was an earlier power of attorney of
which only a copy was produced of the year 1999 and
subsequently another power of attorney has been executed
after the institution of the proceedings. The Apex Court in
the decision reported in M.M.T.C. Ltd. v. M/s Medchl
Chemicals & Pharma (P) Ltd. (AIR 2002 SC 182) held
that,
“If any special statute prescribes offences
and makes any special provision for taking
cognizance of such offences under the statute,
then the complaint requesting the Magistrate to
take cognizance of the offence must satisfy the
eligibility criterion prescribed by the statute. The
only eligibility criterion prescribed by S.142 is
that the complaint under S.142 is that the
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complaint under S.138 must be by the payee or
the holder in due course of said cheque. This
criterion is satisfied as the complaint is in the
name and on behalf of the appellant company
who is the payee of the cheque. Merely because
complaint is signed and presented by a person,
who is neither as authorised agent nor a person
empowered under the Articles of Association or
by any resolution of the Board to do so is no
ground to quash the complaint. It is open to the
de jure complainant company to seek permission
of the Court for sending any other person to
represent the company in the Court. Thus, even
presuming, that initially there was no authority,
still the Company can, at any stage, rectify that
defect. At a subsequent stage the company can
send a person who is competent to represent the
company.”
4. So the principal matter to be looked into is
whether it is the payee or the holder in due course who is the
complainant before the Court. Admittedly, here it is only the
payee who is the complainant before Court. By virtue of the
original power of attorney of the year 1999 a power has been
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given and subsequently another power of attorney has been
specifically given to prosecute the case. Whatever it may be,
the persons entitled to authorize had authorized the person
who had signed the complaint to prosecute the matter and it
is only for and on behalf of the payee. Therefore in the light
of the subsequent power of attorney as well it can be stated
that there is ratification of the action and so the complaint
cannot be defeated on that technical ground.
5. The 2nd question is regarding the non-compliance
of S.138B. U/s 138B of the N.I. Act a notice in writing has to
be given within 15 days from the date of information or
intimation regarding the return of cheque for want of
sufficiency of funds. Here the counsel for the revision
petitioner would argue before me that since the postal
receipt is not produced and as the date of intimation is
21.6.99 and as the acknowledgment is dated 7.7.99 it has to
be stated that there is non-compliance. It has to be
remembered that the revision petitioner is having the original
of the notice with him which would throw much light
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regarding the date of issuance of the notice. When the
acknowledgment has come back on 7.7.99 one need not
disbelieve the case that the notice was sent on 2.7.99 and
therefore this argument also is a technical argument which
has to be only rejected.
6. Lastly, the learned counsel had argued on the
transaction. The revision petitioner is a person who had
entered into a hire purchase agreement for purchase of a
vehicle and from day one has started committing default of
payment of the amount. The cheque is issued on 18.6.99
and the amount of the cheque is Rs.29,550/-. The
instalment due per month is Rs.9,050/- and the third
instalment is due on 25.6.99. The agreement also provides
for 3% extra interest and it is submitted by the complainant
that the cheque amount represents these instalments plus
the interest. As rightly observed by the Courts below this is
not a suit on accounting and the moment the execution of
the cheque is proved then the presumption under the N.I.
Act would be drawn. I am conscious of the fact there cannot
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be any presumption regarding the execution of the cheque.
The signature in the cheque is admitted but the contention is
that blank cheques were signed at the time of taking the
amount. But the evidence of PW1 would show that the
cheque was issued towards the amount due and it was issued
on 18.6.99 and both the Courts below had accepted the
evidence on that witness to find out regarding the
correctness of the execution of the cheque. Therefore I do
not find any mis-appreciation of the evidence or perversity,
illegality or irregularity in the finding of the Courts below that
the revision petitioner has committed the offence u/s 138 of
the N.I.Act.
7. Now let me consider about the sentence. The
Courts below had sentenced him to undergo simple
imprisonment for four months and to pay a sum of
Rs.35,000/- as compensation. Really I am not happy with
the way in which the defence has been set up but
nevertheless I am inclined to show some leniency provided
he has got the willingness to pay the amount. Therefore I
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intend to modify the sentence to one of imprisonment till the
raising of the Court and convert the compensation into that
of fine which on realisation shall be disbursed to the
complainant and in default, default sentence can be awarded.
Therefore the Criminal Revision is disposed of as
follows:
(1) The conviction u/s 138 of the N.I. Act is sustained.
(2) The sentence is modified and the revision
petitioner is sentenced to undergo simple imprisonment till
the raising of the Court and to pay a fine of Rs.35,000/-
which on realisation be paid to the complainant in the case
and in case of default of payment of fine the revision
petitioner has to undergo simple imprisonment for a period
of one month.
(3) The revision petitioner shall appear before the trial
court to receive the sentence and also for payment of fine on
16.3.2009 failing which the trial court is directed to execute
the sentence.
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(4) If any amount is deposited by way of
compensation in this case it can be treated as a part of fine
and let it be disbursed to the complainant on proper
application.
The Crl.R.P. is disposed of as above.
M.N. KRISHNAN, JUDGE.
ul/-