JAYAKUMAR Vs. DEVI VILASOM KETTUTHENGU SANGHAM AND ORS.

JUDGEMENT

(1.) The revision petitioner is the accused in C.C.No.7/2002 on the files of the Judicial First Class Magistrate's Court, Vaikom. The above complaint was filed by the first respondent herein alleging the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act'). The complainant's case is that the accused purchased coconuts from the complainant/Society and towards the price of the coconuts purchased upto July 2000, a sum of Rs.16,000/- was due from the accused to the Society and in discharge of the said debt, the accused issued Ext.P1 cheque in favour of the Secretary of the Society, Sri. Karunakaran Nair and, when the cheque was presented for encashment, it was dishonoured and returned for want of sufficient funds. So also, despite the receipt of notice under Section 138(b), of the N.I. Act, the accused has not repaid the cheque amount.

(2.) 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 two months and to pay a compensation of Rs.18,000/- to the complainant under Section 357(3) of the Cr.P.C. and in default, to undergo simple imprisonment for 15 days. Though, he had challenged the conviction and sentence in Crl.A.No.259/04 before the Additional Sessions Court (Special), Kottayam, after re-appreciating the entire evidence on record, the learned Sessions judge also concurred with the verdict of guilty and confirmed the conviction; but modified the sentence. The substantive sentence of simple imprisonment for two months was reduced and modified to simple imprisonment for one day till rising of the court and retained the rest of the sentence as such without any interference. The legality and propriety of the concurrent findings of conviction and modified sentence are under challenge in this revision petition.

(3.) Though, this revision petition is filed on various grounds challenging the concurrent findings of conviction and modified sentence on merits, the learned counsel for the revision petitioner mainly canvassed the point that the complainant/Society has no locus standi to file the present complaint alleging the dishonour of Ext.P1 cheque, which was issued in favour of one Karunakaran Nair, who represented the complainant Society. According to the learned counsel, the complainant is neither the payee nor the holder in due course. A complaint under Section 138 of the N.I. Act can be filed either by the payee or the holder in due course. In short, Ext.P1 cheque is a personal cheque issued to Karunakaran Nair and not to the Society as contended by the complainant. Therefore, the complaint itself was not maintainable as the complainant had no locus standi to file such a complaint. But the court below miserably failed to consider the maintainability of the complaint under law.