IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 Crl.Rev.Pet.No. 3102 of 2005() ------------------------------ CRA.70/2004 of ADDL.SESSIONS COURT, KOZHIKODE CC.445/2001 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ P. PAVITHRAN, S/O. C.K. CHATHU, PILAVULLATHIL (H), KUMMANKODE AMSOM, NADAPURAM DESOM. BY ADV. SRI.VINOD RAVINDRANATH RESPONDENTS: COMPLAINANT: ------------------------- 1. K.K. CHANDRASEKHARAN, S/O. KUNHUNNI KURUP, 55/01, PADINHARETH VEETTIL, MEMUNDA AMSOM, KEEZHAL DESOM, VADAKARA TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.S.BABU SMT.N.SUDHA PUBLIC PROSECUTOR SRI.. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No. 3102 of 2005 ................................................ Dated: 30-05-2008 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in C.C. No. 445 of 2001 on the file of the J.F.C.M., Nadapuram, challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (b) of the proviso to Section 138 of the Act and that the Revision Petitioner/accused failed to make the payment Crl.R..P. No. 3102 of 2005 -:2:- within 15 days of receipt of the statutory notice. 4. The learned counsel appearing for the revision petitioner raised the following submissions before me in support of the Revision:- Eventhough the cheque in question is issued in favour of the Company, the complaint has been filed not by the company but by a person named Chandrasekharan who is claimed to be the power-of- attorney-holder of the Managing Director of the Company. In the light of the observations in the decision reported in M.M.T.C. Limited & Another v. Medchl Chemicals and Pharma (P) Ltd. and Another - 2002 (1) SCC 234 the complaint should have been filed by the Company itself and not by the Managing Director or his power-of- attorney-holder. The power-of-attorney-holder cannot conduct the case under Sec. 302 Cr.P.C. and case can be conducted only by the payee or the holder-in-due-course. 5. It is true that in the complaint, the complainant is described as A.M. Gopalan, the Managing Parner of Gokulam Chits and Finance Company (P) Ltd. Chennai, represented by his power-of- attorney-holder. There is no dispute that the payee under Ext.P1 cheque is the aforesaid Company of which A.M. Gopalan is the Managing Director. Technically, it can be said that the Company Crl.R..P. No. 3102 of 2005 -:3:- should have been described as the complainant. But then the complainant is described as A.M. Gopalan, Managing Partner of the said Company represented by his power-of-attorney-holder. It is at best is a mis description which cannot be fatal to the p rosecution. It is pertinent to note that statutory notice was issued by the power-of- attorney-holder of the Managing Director and the accused did not even send a reply to the same, much less, question the locus standi of the power-of-attorney. The description of the complainant is at best is only a mis description and the accused has not suffered any prejudice or miscarriage of justice on account of the descritpion of the complainant especially when the fact remains that Ext.P1 cheque is admittedly issued in favour of the company of which A.M. Gopalan is the Managing Director. 6. With regard to the further contention raised by the petitioner, the power-of-attorney-holder has not the person who was conducting the prosecution. He was only representing the complainant and the prosecution was conducted only by the counsel engaged by the complainant. This aspect of the matter is covered against the petitioner in the decision reported in Ashalatha v. State of Kerala - 2007 (3) KLT 984. Both the courts have considered and rejected the defence set up by the revision petitioner while Crl.R..P. No. 3102 of 2005 -:4:- entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner. 7. What now survives for consideration is the question as to whether what should be the proper sentence to be imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am inclined to modify the sentence imposed on the revision petitioner. In the light of the recent decision of the Supreme Court in Ettappadan Ahammedkutty v. E.P. Abdullakoya - 2008 (1) KLT 851 default sentence cannot be imposed for the enforcement of an order for compensation under Sec. 357 (3) Cr.P.C. Accordingly, for the conviction under Section 138 of the Act the revision petitioner is sentenced to pay a fine of Rs. 25,000/- (Rupees twenty five thousand only). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within two months from today and produce a memo to that effect before the trial Court in case of direct payment. It is submitted that the petitioner has already deposited a Crl.R..P. No. 3102 of 2005 -:5:- sum of Rs. 20,000/- before the trial court pursuant to the orders of this Court. The said amount, if deposited shall be permitted to be withdrawn by the first respondent/complainant. If the petitioner fails to deposit or pay the balance amount of Rs. 5,000/- (Rupees five thousand only) within the aforementioned period he shall suffer simple imprisonment for three months by way of default sentence. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. V. RAMKUMAR, JUDGE. ani/-