IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3149 of 2005(C) -------------------------------------- CRA.601/2004 of VI ADDL.SESSIONS COURT, ERNAKULAM CC.625/2000 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. -------------------------------------------------------- N.DILEEP KUMAR, S/O.NARAYANAN, AGED 35, EDAPPURATH NIKARTHIL HOUSE, KADAKARA,EZHIKKARA PO, NORTH PARUR, ERNAKULAM DISTRICT. BY ADV. SRI.JAIJI ITTEN SRI.PRAMOD JAIJI RESPONDENT(S): RESPONDENT/ COMPLAINANT AND STATE. ---------------------------------------------------------------------- 1. SHAAN FINANCE PVT. LTD, 6TH FLOOR, 611, BARTON CENTRE P-84, M.G.ROAD, BANGALORE OFFICE AT M.G.ROAD, ERNAKULAM, COCHIN 11, REPRESENTED BY ITS P.A.HOLDER T.J.THOMAS. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.HARIHARAN FOR R1 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRIMINAL.R.P. NO. 3149 OF 2005 = = = = = = = = = = = = = = = 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. Cr.R.P. 3149 OF 2005 -:2:- (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 Cr.R.P. 3149 OF 2005 -:3:- 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 Cr.R.P. 3149 OF 2005 -:4:- 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 Cr.R.P. 3149 OF 2005 -:5:- 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 Cr.R.P. 3149 OF 2005 -:6:- 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 Cr.R.P. 3149 OF 2005 -:7:- 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. Cr.R.P. 3149 OF 2005 -:8:- (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/-