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2025 Supreme(Online)(Ker) 39417
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J
JACOB GEORGE – Appellant
Versus
SANTHOSH – Respondent
CRL.REV.PET NO. 124 OF 2023 | Crl.A NO.306 OF 2020 | CC NO.450 OF 2019
For the Appellants/Petitioners: SRI.AJITH VISWANATHAN, SHRI.SHIBU JOSEPH, SHRI.SAYED MANSOOR BAFAKHY THANGAL, SHRI.M.SRIRAM
For the Respondents: SRI.P.M.SANEER, SRI.SHAJIN S.HAMEED, SMT.NITHYA R., SMT.S.SEETHA, SR PP
Authorization of multiple claimants is necessary to prosecute under Section 138 of the Negotiable Instruments Act.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal appeal challenging conviction and sentence under Section 138 - The accused issued a cheque to the complainant which was dishonoured for insufficient funds. Subsequent court decisions noted a distinction regarding the authority required to prosecute for cheque issuance on behalf of multiple claimants, emphasizing the importance of authorization before proceeding with prosecution. - The court found that the complainant must provide additional evidence of authorization to pursue the case. (Paras 1, 6, 7)
(B) Criminal Procedure Code - Section 357(3) - The trial court's conviction prescribed simple imprisonment and mandated payment of compensation by the accused, indicating judicial discretion in framing suitable sentences alongside legal provisions. (Paras 3, 4)
| Table of Content |
|---|
| 1. details of the agreement and cheque issuance. (Para 3) |
| 2. outcome regarding remanding the case and further proceedings. (Para 4 , 7) |
| 3. discussion about necessary authorization for prosecution. (Para 6) |
ORDER
This criminal revision petition is filed against the judgment dated 17.10.2022 in Criminal Appeal No.306/020 of the Court of Additional District & Sessions Judge, Muvattupuzha arising out of the judgment dated 18.11.2020 in CC No.450/2019 of the Judicial First Class Magistrate Court (Temporary), Muvattupuzha. As per the impugned judgment, the revision petitioner was found guilty under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act'). The 1st respondent is the complainant. Hereinafter the revision petitioner and the 1st respondent are mentioned as accused and complainant
2. The complainant’s case in brief are as follows:
Complainant is doing fabrication works of ships in Cochin Shipyard in the name and style as Excellent Ship Builders along with his friend one Rijo. On 21.01.2013 Complainant and his friend Rijo entered an agreement with the accused to purchase his property for Rs.58 lakhs and paid a total amount of Rs Rs.52,02,864/- towards the sale consideration. On the failure to effect the said sale, the parties entered an settlement agreement on 03.03.2017, whereby the accused agreed to pay Rs. 45 lakhs to the complainant. As per the said settlement agreement, the accused on 25.09.2017 issued a cheque for Rs. 45 lakhs bearing No. 197162 of Indian Bank, Thiruvankulam dated 25.09.2017 in favour of the complainant. On presentation for encashment the said cheque was dishonoured due to Funds insufficient and the accused failed to pay the cheque amount even after the receipt of demand notice mandated u/s138(b)of NI Act. Hence this complaint.
3. To substantiate the case, the complainant examined PWs 1 to 3. Exts.P1 to P6 are marked from the side of the complainant. On the side of the defence, DW1 was examined and Exts.D1 to D3 are the documents adduced by the defence. After going through the evidence and documents, the trial court found that the accused committed the offence under Section
138 of the NI Act and he was sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.45,00,000/- (Rupees Forty Five Lakhs only) to the complainant under Section 357 (3) Cr.P.C. In default of payment of the compensation amount, the accused was directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, an appeal is filed before the Sessions Court. The Additional District & Sessions Court, Muvattupuzha considered the appeal and modified the substantive sentence of six months to till rising of the court. The default sentence already granted by the trial court is confirmed by the appellate court. Aggrieved by the same, this revision petition is filed.
4. Heard the learned counsel appearing for the revision petitioner, learned counsel for the 1st respondent and the learned Public Prosecutor.
5. The counsel for the accused raised a short point.
The counsel submitted that admitted case of the accused is that the amount due is to the complainant and another. If that is the case, without any authorization from the other person, the complainant cannot prosecute the case. The accused relied on the judgment of this Court in Sunil K.J. v. State of Kerala and Another [ 2020 (4) KHC 347 ]. The counsel for the complainant submitted that there is authorization from the other person and the same was produced before the trial court, but that is not marked.
6. This Court considered the contentions of the complainant and the accused. This Court perused the judgment of this Court in Sunil K.J's case (Supra). The relevant portion of the judgment is extracted hereunder:
“A reading of Section 138 of the Negotiable Instruments Act, it is clear that, when a person draws a cheque on an account maintained by him with a banker for payment of any amount of money to an
