A revision petition under Section 138 involves assessing evidence and liability for issued cheques, affirming that firms’ renaming does not invalidate prosecution rights.

ORDER

P.V.BALAKRISHNAN,J Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioner under Section 138 of the Negotiable Instrument Act (hereinafter referred to as 'the NI Act' for short).

2. The revision petitioner is the accused in CC No.5106/2010 on the files of the Judicial First Class Magistrate Court -IV, Ernakulam. He stood trial before that court for committing an offfence punishable under Section 138 of the NI Act.

3. The complainant, is a partnership firm engaged in the business of media advertisement, designing, etc. It had advertised the recruitment business of M/s.Skyblue Enterprises Private Ltd., an educational consultancy, in various newspapers. Accordingly, huge amounts became due to the complainant from the said M/s.Skyblue Enterprises Pvt.Ltd. Then, the accused approached the complainant by introducing himself as a co- ordinator of the said M/s.Skyblue Enterprises Pvt.Ltd., and after taking over the liability to an extent of Rs.14,00,000/-, issued post dated cheques for the said amount. Some of the cheques thus issued by the accused, got honoured and the complainant received an amount of Rs.9,50,000/-. But one cheque so issued by the accused dated 03.11.2007, for an amount of Rs.1,50,000/- got dishonoured, stating that funds are insufficient. The statutory notice issued to the accused intimating the dishonour and demanding the payment of the amount covered by the cheque also did not evoke any response. Hence, the complainant approached the trial court by filing the afore complaint.

4. The trial court, on an appreciation of the evidence on record and hearing both sides, found the accused guilty of committing an offence punishable under Section 138 of the NI Act and convicted him thereunder. It sentenced the accused to pay a fine of Rs.2,00,000/- under Section 138 of the NI Act, with a default clause and ordered the fine amount to be paid to the complainant, as compensation under Section 357 (1)(b) of Cr.P.C.

5. The accused carried the matter in appeal by filing Criminal Appeal No. 364/2015, before the Additional Sessions Court-II, Ernakulam. The said court, by judgment dated 24.11.2016, dismissed the appeal.

6. Heard Adv.Peeyus.A.Kottam, the learned counsel appearing for the revision petitioner. There is no representation for the first respondent. Perused the records.

7. The learned counsel for the revision petitioner submitted that both the trial court and the appellate court have not appreciated the evidence on record in a correct perspective and has arrived at a wrong conclusion of guilt against the accused. He submitted that the complainant has not proved that, the cheque has been issued by the accused to discharge the liability of M/s.Skyblue Enterprises Private Ltd. and the evidence of PW1 would only show that the cheque has been issued to discharge his personal liability and not the liability of the company. He contended that there is also no evidence to show that the complainant is the Managing Partner of M/s.Akin Communications. He submitted that the proof affidavit filed by PW1 would show that the complainant firm is not in existence and he is representing another firm by name 'Maniamkot Advertising Company, which has nothing to do with the original complainant. He argued that PW1 has prosecuted the case not on behalf of the original complainant but on behalf of a different entity and therefore, the entire proceedings as such has to fail. He contended that the accused is not liable for the debt of M/s.Skyblue Enterprises Pvt Ltd., and that the cheque, which has been obtained by the complainant unlawfully, has been misused in this case. He would submit that there are a total of three case