Point of Law : Section 141 of N.I. Act provides that for purpose of this Section, "company" means anybody corporate and includes a firm or other association of Individuals; and "director", in relation to a firm, means a partner in firm.

ORDER :

This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner is the sole accused in C.C.No.128/2008 on the files of the Judicial First Class Magistrate Court, Malappuram and the appellant in Crl.A.No.119/2011 on the files of the Special Court for SC/ST (POA) Act Cases, Manjeri. The respondents herein are the original complainant as well as State of Kerala.

2. I would like to refer the parties in this revision petition as 'accused' and 'complainant', for convenience.

3. Heard both sides.

4. In this matter, prosecution case runs on the premise that a cheque for Rs.5,00,000/- issued by the accused in favour of the complainant got dishonored for want of funds, when the same was presented for collection. Soon after the dishonor, legal notice was issued demanding the said amount. Since the amount was not paid, the complainant launched prosecution against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as N.I. Act for convenience).

5. The trial court secured the presence of accused and complainant for trial and finally tried the matter. During trial, PWs 1 and 2 were examined and Exts.P1 to P7 marked on the side of the complainant.

6. Although opportunity was given to the accused to adduce defence evidence after questioning the accused under Section 313(1)(b) of the Cr.P.C., no witnesses examined and Exhibits marked on the side of the defence.

7. On appreciation of evidence, the learned Magistrate found that the accused committed the offence punishable under Section 138 of the N.I. Act and accordingly, the accused was sentenced to undergo simple imprisonment for a period of four months and to pay fine of Rs.5,00,000/-. The amount of fine was ordered to be paid as compensation to the complainant. In default of payment of fine, simple imprisonment for two months also was imposed.

8. When the matter was taken in appeal, the learned Special Judge confirmed the conviction as well as the sentence imposed by the trial court.

9. While impeaching the veracity of the concurrent verdicts, a pertinent legal question being argued by the learned counsel for the accused/revision petitioner. It is submitted that Ext.P1 cheque in this matter is a cheque in the name of “Thennala Enterprise”, a partnership firm and the cheque was signed by the Managing partner. Therefore, in order to succeed a prosecution under Section 138 of the N.I. Act, the firm must be arrayed as a party and otherwise the entire prosecution is vitiated. In this connection, the learned counsel for the accused/revision petitioner pointed out Section 141 of the N.I. Act and relevant citations on this point. It is submitted that this Court has considered this legal question in a decision reported in Babu v. State of Kerala [2017 (4) KLT SN 33 (C.No.34)] and held as under :

“If the person committing the offence is a firm, the firm as well as the categories of persons in charge and responsible for the conduct of the business of the firm shall be deemed to be guilty of the offence under S.138 of the Act. It is only because of the deeming provision that the vicarious liability is fixed on the company as well as the persons in charge and responsible for the conduct of the company. In view of the legal fiction brought in under S.141 of the Act, it has to be held that if a firm commits the offence under S.138 of the Act, the firm as well as the persons referred to in S.141 shall be deemed to be guilty of the offence. Therefore, for maintaining the prosecution under S.141 of the Act, the arraigning of the firm as an accused is imperative.”

10. The decision of the Apex Court reported in Aneeta Hada and Others v. M/s. Godfather Travels and Tours Pvt.Ltd and Another [2012 KHC 4244 : 2012 (2) KLD 16 : 2012 (2) KHC SN 36 : 2012 (4) SCALE 644 : 2012 (2) KLJ 456 : 2012 (2) KLT 736 : 2012 (5) SCC 661 : AIR 2012 SC 2795