1. Appellant is the complainant in C.C.No.715/2001 on the file of the Judicial First Class Magistrate-I, Ernakulam. The complaint was instituted alleging offence punishable under Section 138 of the Negotiable Instruments Act. The accused were found guilty of the offence punishable under Section 138 of the Act and they are convicted therein. Accused No.1 Company was sentenced to pay fine of 5,000/-, Accused Nos.2 and 3 were sentenced to undergo simple imprisonment for one month and also to pay a sum of 1,90,000/- to the complainant as compensation under Section 357 (3) of the Cr.P.C. In default of payment of compensation to undergo simple imprisonment for three months. The accused preferred Crl. Appeal No.747/2005 before the learned Sessions Judge. The learned Sessions Judge allowed the appeal and set aside the conviction and sentence. The parties are hereinafter referred to as arrayed in the said C.C.

2. Complainant is M/s.Choice Intermodel Services. Accused No.1 is M/s.Green Sea Marine, Aroor represented by the Managing Partner S.K. Mohammed. Accused No.2 is S.K. Mohammed, Managing Partner and Accused No.3 is V.S.Abdul Gafoor, Partner. Complainant M/s.Choice Intermodel Services is a Division of Choice Trading Corporation Ltd., which is a public limited Company registered under the Companies Act. The complainant is doing business in the field of Shipping and Steamer Agent of Hyundai Marine Co.Ltd. Accused No.1 is a partnership firm doing C & F Agency and accused Nos.2 and 3 were its Managing Partner and partner respectively. Complainant's case is that accused Nos.2 and 3 hired the services of the complainant to make shipment of Cuttle Fish from Cochin to Ningbe China through the vessel “MV Transcord', and that the accused incurred liability of 1,63,872/- towards the complainant for the charges of shipment. To discharge the liability the accused had issued cheque No.620411 dated 29/12/2000 drawn on Federal Bank Ltd., Aroor in favour of the complainant. Cheque when presented was dishonoured with memo dated 29/1/2001 stating 'funds insufficient'. On receipt of communication, the complainant issued notice dated 8/2/2001 demanding the cheque amount. Though the accused received notice on 14/2/2001 they failed to discharge the liability. Complainant company was represented by its power of attorney holder. PW1 was examined and Exts.P1 to P10 were marked. No defence evidence was adduced on the part of the accused. When questioned under Section 313 of the Cr.P.C., accused denied all the incriminating facts in evidence against them. Ext.P1 to P5 respectively are copy of the power of attorney, copy of agency agreement, copy of bill of lading, copy of freight memo and cheque. Exts.P6 to P10 are dishonoured memo, intimation letter, copy of demand notice, acknowledgement card, and true extract of bank account respectively.

3. PW1 testified before the court below that Ext.P5 cheque was issued by the accused for discharging the liability incurred by them in connection with the shipment of cuttle fish from Cochin to China through the vessel named in the complaint. Accused disputed the liability raising the contention that the goods were not delivered at the destination in proper time and damage was caused to the goods due to the negligence of the complainant and therefore accused are not liable to discharge the liability. It is not disputed that Ext.P5 was issued by the accused. Accused also contended that they are not partners of the firm and not liable in furtherance of Ext.P5 cheque. In the complaint it is pleaded that Ext.P5 cheque was delivered by accused Nos.2 and 3 to the complainant. The signature in Ext.P5 cheque is not disputed. The main contention is that they are not liable to pay the amount covered by the cheque due to the non-delivery of goods at the destination in proper time and damage was caused to the goods due to the negligence of the complainant and therefore they are not liable to discharge the liability. On fac