JAYAPRABHA HARIKUMARAN THAMPI Vs. DON BOSCO

JUDGEMENT

(1.) The common question that emerges for Consideration in these Revision Petitions is, whether the principal who has given an authority to operate the account to the Power of Attorney Holder, can be liable to be proceeded against and punished for the offence' punishable under S. 138 of the N.I. Act, caused by the dishonor of the cheque, for insufficient funds, drawn and issued by the Power of Attorney Holder. The revision petitioner is the second accused and the 1st accused proprietary concern, having the business of cine film distribution belongs to her. The 3rd accused is her husband as well as the Power of Attorney Holder, to whom the first accused has given power of attorney to operate the bank account of the 1st accused independently. In the exercise of that power, the third accused has drawn and issued a cheque for an amount of Rs. 50,000/- dated 2.9.2004 and another cheque for an amount of Rs. 55,000/- in discharge of the debt due to the respondent/complainant. On presentation, both the cheques were dishonored and returned for want of sufficient funds. Though the complainant caused to issue a lawyer's notice, the accused neither pay the cheques amount nor did they send a reply denying the liability under the said cheques. Thus, the accused have committed the offence punishable under S. 138 of the N.I. Act which culminated in prosecution in C.C. No. 2450 and 2451/2004 respectively.

(2.) After trial, in both cases, the learned Magistrate found that the revision petitioner, being the principal, who has given Power-of-Attorney to operate the account, is guilty of the offence punishable under S. 138 of the N.I. Act and convicted thereunder. Aggrieved by the conviction entered and the sentence imposed on her, though she had preferred a Crl. Appeal Nos. 817 and 818 of 2008 respectively, after re-appreciating the evidence on record, the learned Sessions Judge also concurred with the findings of the trial court and upheld the conviction sentence, as such, without any interference. The legality, propriety and correctness of the concurrent findings of the conviction and sentence are under challenge in these Revision Petitions.

(3.) Sri T.M. Abdul Latiff, the learned counsel for the petitioner, advanced arguments mainly pointing out the illegality in conviction entered against the revision petitioner. According to him, the courts below went wrong in finding that the revision petitioner is guilty of the offence under S. 138 of the N.I. Act. It is contended that though the revision petitioner is the account holder, who had executed the power of attorney in favour of the 3rd accused to operate the account, he is not the person who had drawn and issued the cheque to the complainant when there was no sufficient fund. The learned counsel drew my attention to S. 7 of the N.I. Act which defines 'drawer' and contended that though the revision petitioner has given power of attorney to operate the account, he cannot be held liable to be proceeded against for the penal consequences caused by the power of attorney holder by drawing and issuing the cheque when there was no fund in the account. In short, where the principal is not the drawer of the cheque, she shall not be liable to be proceeded against for the drawl and issuance of the cheque done by the power of attorney holder.