IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1478 of 2005()
1. P.GIRIJA, AGED 47 YEARS,
... Petitioner
2. R.RAMANI, AGED 42 YEARS,
Vs
1. S.BUVANENDRAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.J.JAYAKUMAR
For Respondent :SRI.T.A.UNNIKRISHNAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/06/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.1478 OF 2005
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Dated 10th June, 2010
O R D E R
Petitioners, the accused in
C.C.643/1997 on the file of Judicial First
Class Magistrate-I, Nedumangad taken
cognizance for the offence under Section
138 of Negotiable Instruments Act on a
complaint filed by Mithranikethan,
Thiruvananthapuram through the power of
attorney, was convicted and sentenced for
the offence under Section 138 of Negotiable
Instruments Act. Petitioners challenged the
conviction and sentence before Sessions
court, Thiruvananthapuram in
Crl.A.141/2001. Learned Additional
Sessions Judge on re-appreciation of the
evidence confirmed the conviction but
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2
modified sentence to imprisonment till rising
of court and compensation of Rs.75,788/-.
Revision is filed challenging the conviction
and sentence.
2. Learned counsel appearing for the
petitioners and first respondent were heard.
3. Argument of the Learned counsel
appearing for the petitioners is that as is
clear from Ext.P10 ledger extract and Ext.P11
specimen signature furnished by the petitioners
for the purpose of opening the account, Ext.P2
cheque was issued in that account opened by
Mahila Samajam with first petitioner as the
President and second petitioner as Secretary of
the Association and Mahila Samajam is not made
an accused and the proceedings was initiated
only against petitioners and therefore, the
conviction is not sustainable. It is argued
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that petitioners have no personal liability
and the loan was granted to more than 40
members of the association and they are
liable to re-pay the same and when there was
default at the instance of Mithranikethan,
petitioners entrusted signed blank cheque
which was utilised for creating Ext.P2 cheque
and as the cheque was not issued by the
petitioners to discharge any of their debt or
liability, they cannot be convicted for the
offence under Section 138 of Negotiable
Instruments Act. It is therefore, argued that
conviction is not sustainable.
4. Learned counsel appearing for
first respondent would argue that Mahila
Samajam is not a registered society or
association and petitioners are President and
Secretary of the Samajam and loan was disbursed
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not to the individual members but to the
petitioners and it is their responsibility to
disburse the amount and also to collect it and
re-pay the same and when there was default, for
the amount due Ext.P2 cheque was issued and as
it was dishonoured and all statutory
formalities were complied with, the conviction
is perfectly legal.
5. Though learned counsel appearing
for the petitioners argued that PW1, who was
examined for first respondent, has no
authority to give evidence and the complaint
was filed not by PW1 but by the then power of
attorney holder Bhuvanendran, who was
examined by the defence as DW2, and therefore,
evidence of PW1 should not have been accepted.
Ext.P1 is the power of attorney executed by the
Director of Mithranikethan, authorising PW1 to
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prosecute the case stating that though power of
attorney was earlier given to DW2 Bhuvanendran
he expressed his difficulty to continue it and
therefore, PW1 was authorised to prosecute the
case further. The evidence of DW2 establish
that he instituted the complaint on the
strength of the power of attorney executed in
his favour when he was an employee of
Mithranikethan and subsequently he resigned
from that post and in such circumstances,
Ext.P1 was executed by the Director authorising
PW1 to prosecute the case further. Evidence of
PW1 shows that he has personal knowledge with
regard to the transaction. In such
circumstances, evidence of PW1 cannot be
ignored and on that ground conviction cannot be
interfered.
6. Ext.P10 ledger extract with Ext.P11
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specimen signature furnished, establish that
the account was opened in Poovachal Branch of
State Bank of Travancore in the name of
Priyadarshini Mahila Samajam by first
petitioner as the President and second
petitioner as the Secretary. Ext.P11 specimen
signature furnished by them conclusively
establish that fact. Though petitioners would
contend that they have no personal liability,
evidence establish that Mithranikethan had
furnished funds to Priyadarshini Mahila
Samajam, for disbursing loan to its members and
petitioners as President and Secretary had
undertaken the liability and the burden to re-
pay the same by collecting the amount from the
members. It cannot be disputed that the
liability was on the petitioners, though in
their capacity as the President and Secretary.
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Though learned counsel argued that there is
no evidence to prove that Ext.P2 cheque was
issued towards the amount due and in fact it
was entrusted as a signed blank cheque, when
instalments were defaulted as security and it
was furnished evidenced by Exts.D1 and D2,
Ext.D1 only shows that apart from Ext.P2
cheque, another cheque which is the subject
matter in Crl.R.P.3188/2006, was also received
by DW2 for Mithranikethan, from the
petitioners. It will not show that those
cheques were blank cheques or tht it was as
security. Petitioners examined DW4 who was an
employee of Mithranikethan to prove that
handwriting in Ext.P2 cheque is that of DW4.
DW4 deposed that it was she who had written
Ext.P2 cheque. But evidence of DW4
establishes that cheque was filled up by DW4
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after verifying the account and it is
thereafter petitioners signed the cheques.
Therefore, in the light of the evidence of DW4,
petitioners cannot contend that they issued
blank cheque, as security. On the other hand,
evidence of DW4 establishes that it was issued
towards the amount due by the petitioners.
7. Learned Sessions Judge appreciated
the evidence in the proper perspective and
rightly found that though petitioners are not
personally benefited by the loan, they are
responsible and liable for the repayment of the
amount and it is in discharge of that liability
they issued Ext.P2 cheque and therefore Ext.P2
cheque was issued towards discharge of a legal
enforceable liability. That finding is in
accordance with the evidence. Evidence
establishes that cheque was presented within
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the statutory period and first respondent had
complied with all the statutory formalities
provided under Sections 138 and 142 of
Negotiable Instruments Act. Hence conviction of
the petitioner for the offence under Section
138 of Negotiable Instruments Act is perfectly
legal.
8. Then the only question is regarding
the sentence. Learned Additional Sessions Judge
modified the sentence to imprisonment till
rising of court and compensation of
Rs.75,788/-, the amount covered by the
dishonoured cheque and in default simple
imprisonment for three months each. Learned
counsel submitted that direction was to pay
compensation of Rs.75,788/- each by the
petitioners and it will be double the amount
covered by the dishonoured cheque. I find that
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there is no direction to pay compensation of
Rs.75,788/- each by the petitioners. Instead
on default they were directed to undergo simple
imprisonment for three months each. In order to
avoid confusion, it is clarified that
petitioners need to pay compensation of
Rs.75,788/- jointly viz. Rs.37,894/- each.
Revision is disposed clarifying that
compensation payable by each of the petitioners
is Rs.37,894/-.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.