IMPORTANT POINTS
Sub-section (2), having been started with a non obstante clause, the implication of the categories of officers guilty for themselves having been consented to the commission of the offence by the company or connived with in the commission by the company or remaining negligent and thereby caused the commission thereof, must be in addition to the company and officers in charge of and responsible for the conduct of the business of the company described under Sub-section (1) of Section 141 N.I Act.

ORDER :

This revision petition is directed against the judgment dated 29.05.2007 in Crl.A. No.865/05 on the files of Additional District and Sessions Judge (Fast Track) (Adhoc-I), Kozhikode which was originated from judgment dated 07.12.2005 of Judicial First Class Magistrate-III, Kozhikode in CC No.200/2003.

2. The revision petitioner is the accused in a prosecution launched by the 1st respondent under Section 142 of the Negotiable Instruments Act, 1881 (for short the 'NI Act') alleging commission of an offence punishable under Section 138 NI Act. The allegation raised in the complaint to launch the prosecution under Section 142 N.I Act was that a sum of Rs.1,00,000/-was advanced by the complainant to him by way of a cheque bearing No.46121 dated 16.06.2001 drawn from the Account maintained with the main branch of State Bank of India, Kozhikode. When the amount was advanced, the accused has promised to repay the same after a year. After the expiry of one year, the amount was demanded back and the accused then issued cheque bearing No.348872 dated 18.11.2002 for a sum of Rs.1,00,000/-drawn on Syndicate Bank, Mavoor Road Branch, Kozhikode towards repayment. The cheque was presented before the Bank for encashment but returned bounced for the reason 'account closed'. A memo stating the reason for dishonour was obtained by the complainant on 19.11.2002. The complainant then caused to serve a registered lawyer notice on the accused on 29.11.2002 intimating the factum of dishonour of cheque and demanding payment covered by the cheque within 15 days' from the date of receipt of the notice. The notice sent to the business place of the accused was returned unclaimed. Another notice was also sent in the residential address of the accused and that was returned duly acknowledged by the accused. Eventhough the notice was acknowledged as received, the accused failed to repay the amount to the complainant. In the said circumstances, the prosecution in question was launched by the complainant against the accused under Section 142 alleging commission of an offence under Section 138 of NI Act.

3. The complaint was taken on file by the Judicial First Class Magistrate Court III, Kozhikode as CC No.200/2003 after recording the sworn statement of the complainant. On the accused's entering appearance before the court, particulars of accusations were read over to him. Those were denied by the accused and accordingly, the trial was proceeded with.

4. Before the trial court, the complainant tendered evidence as PW1 and marked Exts.P1 to P5. On closure of the evidence of the complainant, the accused was examined under Section 313(1)(b) Cr.P.C, with reference to the incriminating circumstances brought in evidence by the complainant. He denied all incriminating evidence brought in by the complainant. Association with Udaya Chemists and Druggists, the firm referred to in the complaint, of which he was alleged as the managing partner was also specifically denied by him.

5. The accused failed to adduce any evidence when he was called upon to do so. Appreciating the entire evidence on record, the Judicial First Class Magistrate Court-III, Kozhikode arrived at a finding of guilt of the accused under Section 138 NI Act and convicted and sentenced him to undergo simple imprisonment for 6 months and to pay Rs.1,00,000/-as compensation under Section 357(3) Cr.P.C. A further direction was also issued to undergo simple imprisonment for three months as default sentence.

6. The aggrieved accused has approached the Additional District and Sessions Judge (Fast Track) (Adhoc-I), Kozhikode in Crl.A. No.865/2005. The parties to the appeal were heard by the aforesaid court and thereby finding of the trial court on guilt of the accused for an offence under Section 138 NI Act was confirmed. The order of conviction was confirmed but the sentence imposed was modified till rising of the court and the direction to pay Rs.1,00,000/-as compensation and default sentence were maintained. T