RADHAKRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) - The petitioners herein have been arrayed as accused No.1 and accused No.2 for the offence punishable under section 138 of the Negotiable Instruments Act in Calendar Case No.4509 of 2010 on the file of the Judicial First Class Magistrate Court-VI, Ernakulam, instituted on the basis of a complaint filed by the second respondent herein. Exhibit-P1 dishonoured cheque dated 5.2.2008 is for Rs. 94,000/-.

(2.) Initially the complaint dated 6.10.2008 was filed by the second respondent herein on 13.10.2008 wherein the sole accused therein is the first revision petitioner herein, who is stated to be the Managing Director of a Chit Company. Later, the complainant had filed application dated 26.2.2014 in purported invocation of the provisions contained in section 319 of the Cr.P.C., 1973 seeking to array the second revision petitioner herein/Chit Company concerned as additional respondent No.2 in the complaint and the said application was allowed by the trial court on 8.1.2014. Summons was thus issued and served and thereupon cognizance was also taken as against the second additional accused Company. The said additional accused No.2 is the Chit Company and the first revision petitioner is stated to be the Managing Director of the said chit Company. It is not in dispute that the statutory demand notice as contemplated under Section 138 proviso (b) was issued to the Managing Director of the said Chit Company and it is not in dispute that such statutory demand notice was not sent to the second accused Company. An objection was raised by the second revision petitioner/additional accused No.2 Company that since statutory demand notice under Section 138 proviso (b) was never served on the said Company, complaint is not maintainable and even as per the case projected by the complainant in evidence, the drawer of the cheque is the Company inasmuch as the dishonoured cheque has been issued from the account maintained by the Company and not from the individual account of the first revision petitioner. Accordingly, it is contended that since no statutory demand notice was actually served prior to the institution of the complaint on the drawer of the cheque, the complaint itself is not maintainable. Both the courts below have overruled the said contention of the revision petitioners. Based on the available evidence, the trial court has found that the offence under section 138 of the Negotiable Instruments Act has been committed by additional accused No.2 Company and that the original accused, who was the Managing Director of the Company at the relevant time, is vicariously liable. In that view of the matter, the trial court has convicted both the accused for the abovesaid offence and were sentenced to pay a fine of Rs. 1,00,000/- and in default of payment of fine, the accused were sentenced to undergo simple imprisonment for a period of six months and that the fine amount realised was directed to be paid as compensation to the complainant under section 357(1) (b) of the Cr.P.C., 1973 Thereupon the accused persons had filed Criminal Appeal No.456 of 2014 before the Appellate Sessions Judge, Ernakulam, to impugn the above said trial court judgment of conviction and sentence dated 24.9.2014 in C.C.No.4509 of 2010. The appellate Sessions Court, as per the impugned judgment dated 3.6.2015, has dismissed Criminal Appeal No.456 of 2014 and has held that the complaint is maintainable and further that both the accused are liable to be convicted and have also confirmed the sentence of fine and default sentence. It is these judgments of conviction and sentence imposed concurrently by both the courts below are under challenge in this revision petition.

(3.) Heard Sri.T.N.Hareendran, learned counsel appearing for the revision petitioners/accused Nos.1 and 2, Sri.C.A.Majeed, learned counsel appearing for R2/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State.