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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
P. Rasheedali, Son of Abdu – Appellant
Versus
M/s. Valiery Vaidyasala – Respondent
Crl.Rev.Pet No. 65, 66, 67 of 2017
Decided on : 31-10-2022
Negotiable Instruments Act - Section 7, 8, 9, 142, 138, 19, 22, 26, 27, 28 – Criminal Procedure Code, 1973 - Section 357(1)(b), 138(b) - Partnership Act - Section 28 - Cheque Dishonoured - Discharge of Liability Towards Firm - Complainant, lodged separate complaints when cheque were dishonoured - Whether it amounts to discharge of liability towards firm - Uniformity and consistency in deciding similar cases by different Courts, not only increase credibility of cheque as a negotiable instrument, but also credibility of Courts of justice – Para 27.
Finding of the Court :
When cheques issued in favour of firm were dishonoured, Dr. K.P.Saji Kumar is competent to send notices and non description of fact that he had sent notices, as Managing Director of firm and representing firm is of no legal consequence, since accused got due information and knowledge about party, to whom, he had to discharge liability - Therefore, first contention as canvassed by learned counsel for revision petitioner cannot be sustained - In this connection, Court shall refer cheque amounts and punishment imposed by trial court - Therefore, same is also within statutory limit - Similarly, trial court imposed Rs.3,00,000/- as fine amount, when total amount covered by cheques would come to Rs.2,11,390/ - Therefore, same also is within statutory limit - Thus, it has to be concluded that sentence also is within statutory limit, which was confirmed by appellate court as well - Therefore, Court is not inclined to interfere in sentence also - Therefore, sentence also stands confirmed.
Result: Petitions dismissed.
ORDER :
Crl.R.P.No.65/2017 arises out of judgment in CC.No.2183/2015 dated 29.01.2016 on the file of the Special Judicial First Class Magistrate Court (N.I Act Cases), Kozhikode and the judgment dated 26.11.2016 in Crl.A.No.83/2016 on the file of the First Additional Sessions Court, Kozhikode.
2. Crl.R.P.No.66/2017 arises out of judgment in CC.No.2181/2015 dated 29.01.2016 on the file of the Special Judicial first Class Magistrate Court (N.I Act Cases), Kozhikode and the judgment dated 26.11.2016 in Crl.A.No.82/2016 on the file of the First Additional Sessions Court, Kozhikode.
3. Crl.R.P.No.67/2017 arises out of judgment in CC.No.2182/2015 dated 29.01.2016 on the file of the Special Judicial first Class Magistrate Court (N.I Act Cases), Kozhikode and the judgment dated 26.11.2016 in C.A.No.84/2016 on the file of the First Additional Sessions Court, Kozhikode.
4. The revision petitioner in all these cases is the sole accused in the above cases, who suffered conviction and sentence at the hands of the trial court as well as the appellate court. The 1st respondent in all these matters is the original complainant and the 2nd respondent is State of Kerala.
5. Heard the learned counsel for the revision petitioner as well as the learned counsel for the first respondent. The learned Public Prosecutor representing the second respondent also was heard.
6. I would like to refer the parties in these revision petitions as `revision petitioner’(accused) and the 'first respondent' (complainant), hereafter for convenience.
7. Short facts of the case: The complainant, a partnership firm `M/s.Valiery Vaidyasala', lodged separate complaints under Section 142 of the Negotiable Instruments Act (`N.I Act’ for short) through its Managing Director Dr. K.P.Saji Kumar when Ext.P3 cheque dated 24.11.2011, Ext.P10 cheque dated 30.11.2011, Ext.P17 cheque dated 08.12.2011, Ext.P24 cheque dated 06.01.2012, Ext.P32 cheque dated 22.12.2012, Ext.P39 cheque dated 02.12.2011, and Ext.P46 cheque dated 20.11.2011 were dishonoured, when the same were presented for collection. The complainant raised allegation in the complaint that the complainant through its Managing Director maintained business dealings with the 2nd accused, who has been running business under the name `M/s.Taj Pharmaceutical Distributors' and the above cheques were issued in discharge of the liability for purchase of medicines by the accused from the complainant.
8. The trial court tried all these 3 cases together. The trial court secured the presence of the accused for trial and tried the matter. PW1 and PW2 examined and Exts.P1 to P57 were marked on the side of the prosecution. Though the accused was given opportunity to adduce defence evidence, no defence evidence adduced. The trial court appraised the evidence and finally convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced him (the second accused) in C.C.No.2181/2015 to undergo imprisonment for 2 months and directed to pay fine of Rs.2 lakh; in C.C.No.2182/2015 to undergo imprisonment for 2 months and directed to pay fine of Rs.1,25,000/-and in C.C.No.2183/2015 to undergo imprisonment for 2 months and directed to pay fine of Rs.3 lakh. In default of payment of fine in all the 3 cases, the accused was sentenced to undergo simple imprisonment for one month and the fine was ordered to be paid as compensation under Section 357(1)(b) of Cr.P.C to the complainant.
9. On appeal, the learned Additional Sessions Judge confirmed the sentence, while modifying the substantive sentence in all the 3 cases to imprisonment for one day till rising of the court and ordered to pay fine of Rs.2 lakh in C.C.No.2181/2015, Rs.1,25,000/-in C.C.No.2182/2015 and Rs.3 lakh in C.C.No.2183/2015. The default sentence also was modified to 2 months in all the 3 cases.
10. While impeaching the veracity of the verdicts of the courts below, 2 points have been raised by the learned counsel for the revision petitioner to unsustain the concurren
SupremeToday
Payee - The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the payee.
The sufficiency of a legal notice under the N.I. Act does not require specific formulations, and a managing partner can send notice on behalf of the firm.
Only the drawer of a cheque is entitled to notice under Section 138(b) of the Negotiable Instruments Act, not signatories facing indictment under Section 141.
Dishonour of cheque – By making a higher demand in a notice sent under Section 138(b) of N.I. Act, would not by itself invalidate notice provided, details of claim towards additional amounts are spec....
Point of law : Negotiable instruments - Though in the notice, the demand for compensation, interest, cost, etc. is also made, the drawer will be absolved from his liability under Section 138 of the N....
The judgment establishes the importance of a valid notice under Section 138 of the Negotiable Instruments Act, the statutory presumption under Section 139, and the impact of discrepancy in the cheque....
It has been settled in law that the accused can either adduce independent evidence or rely on the evidence tendered by the complainant to rebut the presumptions.
The burden of proof shifts to the complainant once the accused discharges the initial burden of proof, and the presumption under Sections 118 and 139 of the N.I Act disappears.
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