CHACKO MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner is the accused in C.C. No. 572/05 on the files of the Judicial First Class Magistrate's Court-I, Erattupetta, as well as the appellant in Crl. Appeal No. 106/07 on the files of the Additional Sessions Judge, Pala. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') on a complaint filed by the complainant/2nd respondent. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for a period of one year under Section 138 of the NI Act and to pay a compensation of Rs. 14,27,464/- to the complainant/2nd respondent under Section 357(3) Cr.P.C. and in default, to undergo simple imprisonment for six months. Though he had preferred an appeal, the Appellate Court also confirmed the conviction and sentence. This revision petition is filed challenging the concurrent findings of conviction and sentence entered on various grounds. The case of the complainant is that towards the payment of the value of timber supplied, the accused issued Ext. P1 cheque dated 31/03/2005 for Rs. 14,27,464/- to him. When he presented the cheque for encashment, the same was dishonoured for want of sufficient funds. Though he had issued statutory notice demanding the cheque amount, the revision petitioner had not paid the said amount; but sent a reply denying the said claim. Thus, the revision petitioner has committed the offence punishable under Section 138 of the NI Act.

(2.) The complainant's case, in brief, is as follows:

(3.) Though this Revision Petition has been filed on various grounds, Sri. Bechu Kurian Thomas, the learned counsel for the revision petitioner, focused on one point only at the time of argument. The learned counsel submits that the complaint is not maintainable for the reason that the company who had drawn the cheque has not been arraigned as an accused in the complaint. The Managing Director who had signed the cheque for and on behalf of the company alone was made an accused. The prosecution under Section 138 of the NI Act would not be maintainable unless the drawer of the cheque, the company, is made as an accused. The maintainability of the complaint for the above reason was one of the main contentions raised in the Trial Court. But the learned Magistrate rejected the contention relying on the decision of the Supreme Court in Anil Hada v. Indian Acrylic Ltd., 2000 1 SCC 1and other decisions of this Court in Gracy Thomas v. State of Kerala, 2005 4 KerLT 75and N. Radhakrishnan v. A.C. Thomas, 2006 1 KerLT 150 which followed the above decision. In Anil Hada v. Indian Acrylic Ltd., the Supreme Court held that the prosecution of the Company is not sine qua non for prosecution of the other categories mentioned under Section 141 of the Act. In N. Radhakrishnan's case it was held that the Managing Partner who signed the cheque on behalf of the firm is the drawer of the cheque notwithstanding the fact that the account stands in the name of the firm. Now the Supreme Court overruled the above decision in Anil Hada's case , settled the legal position in Aneeta Hada v. Godfather Travels and Tours Private Ltd., 2012 5 SCC 661 and 3 other Criminal Appeals and held that the prosecution for an offence under Section 138 is not maintainable against the Managing Director or Directors of the company alone, unless the company is arraigned as an accused along with the Managing Director or Directors, as the case may be. Thus, this question challenging maintainability had been raised at the earliest opportunity; but the Trial Court was not inclined to accept it. Aggrieved by the conviction and sentence, though an appeal had been filed and again raised the same contention, the Appellate Court also dismissed the Appeal relying on the decision of the Supreme Court in Anil Hada's case and other decisions which followed the above decision. The counsel submits that now on a reference on the question of law, settled the legal position and accepted the point which the revision petitioner had raised before the Trial Court and Appellate Court, after overruling the earlier decisions, on which the Trial Court and Appellate Court had relied on. The learned counsel submits that in view of the decision in Aneeta Hada's case , this Revision is liable to be allowed, as the complaint itself was not maintainable.