IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 Crl.Rev.Pet.No. 1558 of 2004(D) -------------------------------------------- [C.C.NO.69/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II(MOBILE), ALAPPUZHA DATED 23/03/2004] .................... PETITIONER/COMPLAINANT: ----------------------------------------- M/S. DEVI AGENCIES, REPRESENTED BY ITS PROPRIETOR, B. SHATHRUGHANA REDDIAR, CULLEN ROAD, ALAPPUZHA. BY ADVS. SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENTS/STATE AND ACCUSED: --------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S. SUDHA HERBAL (INDIA) LTD., PRESENT ADDRESS: THAIKATT MOOS E.T.M. OUSHADASHALA LTD., VELLANGALLUR, THRISSUR-680 662, REPRESENTED BY ITS MANAGING DIRECTOR, K.MOHANAN, AGED 48, S/O. SIVARAMAN, KANAKAPARAMBIL HOUSE, COURT VIEW ROAD, IRINJALAKUDA, THRISSUR. R1 BY PUBLIC PROSECUTOR SRI. ALEX M. THOMRA, R2 BY ADV. SRI.G.SREEKUMAR (CHELUR). THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/08/2011, ALONG WITH CRL.R.P NO. 1559 OF 2004 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.Nos.1874, 1875, 1876, 1877 & 1879 of 2004 and1696 & 1697 of 2006 and Crl.R.P.Nos. 1558 & 1559 of 2004 ---------------------------------------------- Dated this the 22nd day of August 2011 J U D G M E N T Five complaints against the company as the first accused and against the 2nd accused who was stated to be the Managing Director of the company were filed by M/s.Devi Agencies, the appellant in Crl.A.No.1876/2004. The first accused company disowned the liability contending that the cheques were drawn by the 2nd accused who was not the Managing Director or the person-in-charge or control of the business of the first accused company. There was dispute regarding service of notice on the first accused company also. The company disputed the liability to pay the amount as well. 2. The complainant contended that the amounts Crl.A.Nos.1874, 1875, 1876, 1877 & 1879 of 2004 and Crl.R.P.Nos. 1558 & 1559 of 2004 -: 2 :- mentioned in the five cheques (the subject matter of the five complaints in C.C.Nos.66/2003, 67/2003, 68/2003, 69/2003 and 70/2003) were due from the first accused company and since the cheques were issued by its Managing Director who was in charge of the affairs of the company, the 2nd accused who drew cheques and also the first accused company are liable to be found guilty of the offence under Sec.138 of the N.I.Act. 3. Before the court below, the Managing Partner of the firm was examined as PW1 and Exts.P1 to P30 were marked. The present Managing Director of the company was examined as DW1 and Exts.D1 to D7 were marked. 4. There was evidence to show that the name of the first accused company was subsequently changed as Thaikatt Moos E.T.M. Oushadashala Ltd. DW1 is the present Managing Director. It was found that as per Ext.P5 the 2nd accused company ceased to be in charge of the Crl.A.Nos.1874, 1875, 1876, 1877 & 1879 of 2004 and Crl.R.P.Nos. 1558 & 1559 of 2004 -: 3 :- affairs of the company since 7.9.2002. The cheques in question were drawn subsequent to 7.9.2002. Therefore, the company contended that the company is not liable for the act of the 2nd accused who was no longer the person in charge of the affairs of the company. However, the learned Magistrate found that money was due from the company to the complainant. As such the first accused company was held liable, convicted and sentenced for the offence under Sec.138 of the N.I.Act. The present Managing Director was not the person who drew the cheques. Hence the company was sentenced to pay only Rs.5,000/- as fine. Challenging the inadequacy/incorrectness of the sentence awarded by the court below, five revision petitions were filed. Since the conviction of the first accused company in three cases was not challenged by the company, those three revision petitions were allowed by this Court in part and those three cases have already been remanded to the court of CJM, Crl.A.Nos.1874, 1875, 1876, 1877 & 1879 of 2004 and Crl.R.P.Nos. 1558 & 1559 of 2004 -: 4 :- Alappuzha for passing appropriate sentence. 5. The learned counsel for the complainant would submit that the five criminal appeals namely; Crl.A.Nos.1874, 1875, 1876, 1877 and 1879 of 2003 filed by the complainant may have to be allowed since there is evidence to show that it was the 2nd accused who drew all the five cheques and it was he who received the statutory notices sent on behalf of the complainant. No reply was also sent by him. Even though as on the date of issuance of the cheques he was not the Managing Director of the complainant company, as the drawer of the cheque he cannot get himself absolved of the liability under Sec.138 of the N.I.Act, the learned counsel submits. 6. The learned counsel for the first accused company Sri.Sreekumar would submit that the company cannot be mulcted with the liability since admittedly all the five cheques were drawn by the 2nd accused who was no longer Crl.A.Nos.1874, 1875, 1876, 1877 & 1879 of 2004 and Crl.R.P.Nos. 1558 & 1559 of 2004 -: 5 :- the Manager or the person in charge or control of the business of the company. These questions were not seen properly adverted to by the courts below. Since the three cases have already been remanded to the learned CJM, Alappuzha in which the conviction of the first accused company was confirmed it is just and proper that the appeals filed by the complainant are also allowed to the extent of the challenge of acquittal of the 2nd accused. Similarly the two revision petitions filed by the complainant challenging the quantum of sentence awarded in those two cases have also be disposed of in that line. In the result, judgments of acquittal passed against K.V.Harshan, the 2nd accused in all the five cases (C.C.Nos.66/2003, 67/2003, 68/2003, 69/2003 & 70/2003) of J.F.C.M.-II (Mobile), Alappuzha are set aside and to that extent Crl.A.Nos.1874, 1875, 1876, 1877 & 1879 of 2004 are allowed. Since the conviction of the first accused, Crl.A.Nos.1874, 1875, 1876, 1877 & 1879 of 2004 and Crl.R.P.Nos. 1558 & 1559 of 2004 -: 6 :- namely the company-Thaikatt Moos E.T.M. Oushadashala Ltd. in C.C.Nos.66/2003 and 69/2003, challenged by the company (which were pending before the Sessions Court as Crl.A.Nos.243/2004 and 244/2004) were withdrawn to this Court and were heard along with criminal appeals filed by the complainant and other criminal revision petitions and since the cases were remanded for fresh disposal it is just and proper that the conviction of the first accused company in C.C.Nos.66/2003 and 69/2003 is set aside and remanded for fresh disposal along with five criminal appeals referred to above. Therefore, Crl.R.P.Nos.1558/2004 and 1559/2004 are allowed to that extent. Since the other cases were ordered to be remanded to the trial court for fresh disposal and since the Crl.R.Ps filed by the complainant in three other cases had already been remanded to learned CJM, Alappuzha it is better that all these cases are remanded to the learned CJM, Alappuzha. It is needless to mention that Crl.A.Nos.1874, 1875, 1876, 1877 & 1879 of 2004 and Crl.R.P.Nos. 1558 & 1559 of 2004 -: 7 :- the conviction of the first accused company in the three cases which had already been remanded to the learned CJM, Alappuzha for passing appropriate sentence will not be affected by the orders of remand of the two cases in C.C.Nos.66/2003 and 69/2003. Parties will appear before that court on 28.9.2011. N.K.BALAKRISHNAN, JUDGE. Jvt