Point of law: Negotiable instruments – Conviction set aside - There can be no vicarious liability unless there is a prosecution against the firm. The vicarious liability gets attracted when the condition precedent laid down in Section 141 of the N.I. Act can satisfy.

ORDER :

The revision petitioner is the first accused in S.T.No.1985/2008 of the Judicial First Class Magistrate Court-IV, Ernakulam. The first respondent is the complainant in the above case. The revision petitioner is aggrieved by the judgment dated 29.8.2014 passed by the Sessions Court, Ernakulam holding that the appellant is guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act') after confirming the finding of conviction and sentence passed by the trial court by its judgment dated 17 January, 2014. The parties are hereinafter referred to as 'the complainant' and 'the accused' according to their status in the trial court unless otherwise stated.

2. The brief facts of the case, which emanate from the records, are that the revision petitioner borrowed an amount of Rs.8,00,000/-from the complainant and executed a cheque dated 31.1.2008 for an amount of Rs.8,00,000/-in the name of the complainant from the State Bank of Travancore, Ernakulam Broadway branch. The complainant presented the cheque for collection through Catholic Syrian Bank, Market Road branch. The cheque on presentation was returned due to insufficiency of funds in the account of the accused. A legal notice was sent by the complainant to the accused. The notice was duly served, but the accused neither responded to the notice nor made any payment infurtherance thereto within the statutory period. The first accused is the Managing Partner of the firm and the second accused is the partner of the firm under name and style M/s.K.Velayudhan Pillai, Glass Merchant, Broadway, Ernakulam.

3. The first respondent/complainant recorded preliminary evidence before the trial court and thereafter, the accused was directed to be summoned for the offence punishable under Section 138 of the N.I.Act. Pursuant to the summons, the first accused entered appearance and the second accused was reported dead. After securing the presence of the first accused, the particulars of the offence allegedly committed by the first accused under Section 138of the N.I.Act were read over to him, whereto he pleaded not guilty and claimed for trial. Thereafter, PWs.1 to 4 were examined and marked Exts.P1 to P8 on the complainant's side. On conclusion of the recording of the complainant's evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.') by the trial court for the purpose of enabling him to explain any circumstance appearing in the evidence against him whereby the revision petitioner/accused denied all the incriminating circumstances appearing in the evidence against him and claimed innocence. DW1 was examined on the side of the accused and duly exhibited Exts.D1 to D5.

4. The first appellate court, on re-appraisal of the evidence on record, affirmed that the complainant proved that Ext.P1 cheque was issued for a legally enforceable debt and it was for the revision petitioner/accused to discharge his burden to rebut the presumption under Sections 118 and 139 of the N.I.Act.

5. After considering the evidence adduced by the parties and hearing the parties, the trial court and first appellate court concurrently found that the accused was guilty of the offence under Section 138 of the N.I.Act and accordingly, he was convicted thereunder. The revision petitioner/first accused was convicted and sentenced to pay a fine of Rs.8,20,000/-and in default of payment of fine, to undergo simple imprisonment for a period of six months. It was directed that the fine amount, if realised, an amount ofRs.8,10,000/-shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C.

6. The first accused in this case is Sri.K.Velayudhan Pillai, Managing Partner, M/s.K.Velayudhan Pillai Glass Merchant, Broadway, Ernakulam and the second accused is one of the partners of the firm. Learned counsel for the revision petitioner contended that the findings of the trial