Maintainability of complaint by proprietary concern under the Negotiable Instrument Act and the court's power to modify the sentence based on evidence discrepancies.

The revision has been filed against the Judgment dated 09.8.2010 passed in Crl.A. No.44 of 2010 on the file of the Additional Sessions and Judge (FTC-V) Chennai, confirming the Judgment dated 12.3.2010 passed in C.C.No.5718 of 2004 on the file of the XXIII Metropolitan Magistrate, Saidapet, Chennai -15 and set aside the same.

2. The case of the respondent/complainant Firm is that they are doing financial business and the accused obtained loan of Rs.2,44,000/-and agreed to pay the amount in equated monthly instalment with interest thereon. The accused had issued cheque through his Proprietorship concern towards part payment of the loan amount. When the said cheque was presented for encashment, the same was returned with an endorsement "Account closed". Therefore, legal notice was issued to the accused but the same was returned unserved. Thereafter, the complainant has filed the present complaint for the offences punishable under Section 138 of the Negotiable Instrument Act and the same was taken cognizance in C.C. Nos. 5718 of 2004 on the file of the learned XXIII Metropolitan Magistrate, Saidapet, Chennai. Ultimately, after trial, the trial court convicted the accused for the offences punishable under Section 138 of the Negotiable Instrument Act and sentenced him to undergo simple imprisonment for a period of one year. The appeal filed by the petitioner before the Appellate Court in Crl.A. No. 44 of 2010 was also dismissed and the appellate Court, by judgment dated 09.8.2010, while confirming the sentence of imprisonment, directed the accused to pay a compensation of Rs.1,51,650/-. Aggrieved by the order passed by the Courts below, the petitioner has filed the present Criminal Revision Cases.

3. The learned counsel for the petitioner submitted that the complaint itself is not maintainable. According to the learned counsel as the respondent, being a proprietary concern, is not a legal entity and it is not entitled to prosecute the complaint as against the petitioner. The leaned counsel for the petitioner further submitted that there is a lot of discrepancy with regard to the advancement of loan amount. P.W.3, the proprietor of the company, has stated that the amount is Rs.2,00,000/-whereas P.W.1, the power of attorney holder deposed that the loan amount is Rs.2,44,000/-. When there is a such great discrepancy, the rebuttal will not arise till very quantum is fixed. The learned counsel for the petitioner also submitted that at the time of cross examination, P.W.3, admitted that Ex.D10 receipt was for Rs.1,19,500/-whereas the contention of the respondent is that the receipt was only for Rs.19,500/-. Further P.W.3 in the cross examination admitted that Ex.D.10 was written by him and at that time he has not denied that the amount was only Rs.19,500/-. The learned counsel for the petitioner submitted that the Court below failed to take into consideration this vital point while convicting the petitioner. It is submitted by the learned counsel that though the cheque amount was Rs.1,51,650/-, the petitioner has paid a sum of Rs.2,55,350/-to the Complainant. Therefore, the learned counsel prayed for showing leniency in reduction of sentence.

4. The learned counsel for the respondent by relying on the judgment of the Hon`ble Supreme Court in SHANKAR FINANCE INVESTMENTS vs. STATE OF ANDHRA PRADESH (2008 (3) SCC Crl. 558) has submitted that in a Criminal Complaint relating to an offence under Section 138 of Negotiable Instrument Act, it is permissible to lodge the complaint in the name of the proprietary concern itself. The leaned counsel for the respondent further submitted that the Principal Complainant was put in the witness box and he had deposed about the execution of the Power of Attorney. Therefore, the question regarding the admissibility and validity of the Power of Attorney need not be gone into. The learned counsel also submitted that as per Expert opinion, it is clear that there is an interpolation in Ex.D10 document and