PULIKKATTIL TRADERS Vs. AVM MARKETING

JUDGEMENT

(1.) Dated this the 21st day of November, 2019 The revision is directed against the judgment of the Additional District and Sessions Judge IV, Kozhikode in Crl.A No.214/2018 affirming the conviction and sentence passed by Judicial First Class Magistrate Court XI, Kozhikode in S.T. No.6/2018 vide judgment dated 18.5.2018. The revision is filed by the appellants/accused against the concurrent findings of guilt against him and orders of conviction and sentence.

(2.) The facts of the case in brief are to the following effect:

(3.) It is primarily contended by Sri.Bindu Sasthamangalam, the learned counsel for the appellant that, the second accused being the Managing Partner and the representative of the first accused, in the event of the first accused firm found guilty of the offence under Section 138 N.I Act, the second accused ought not to have been found guilty and imposed with punishment, twice. According to him, there was no allegation in the complaint filed by the 1 st respondent to launch the prosecution that the offence under Section 138 N.I Act was committed by the first and second accused in furtherance of their common intention to commit the same. It is contended by the learned counsel that even at the time when accusations have been read over to the accused, a whisper was not made indicative of the commission of offence under Section 138 N.I Act by both accused jointly in furtherance of their common intention. According to the learned counsel for want of incorporation of Section 34 IPC, while charging the accused and sending them for trial, it is improper to find the first and second accused guilty for the same and convicted and sentenced separately. Accordingly, the learned counsel urged to interfere with the imposition of punishment separately on the Managing Partner as representative of the firm and on him in his capacity as such. Accordingly it was urged by the learned counsel that the courts are justified in finding that the firm as well as the Managing Partner are guilty of the offence under Section 138 N.I Act, but unjustified in imposing sentence separately on the Managing Partner as representative of the firm and in his capacity as such. Secondly, it was contended by the learned counsel that the issuance of the cheque being in the year 2016 and in view of the pendency of the prosecution for two years, this Court has to take a lenient view in the matter of imposition of fine amount by issuing a direction to the revision petitioner to pay interest at the rate of 9% per annum for the fine amount equal to the amount covered by the cheque, following the dictum in Vijayan v. Baby [(2011(4) KLT 355(SC)] . The learned counsel has advanced arguments to convince this Court that a direction was issued by the Apex Court in Vijayan's case (supra) to grant interest at the rate of 9% per annum for the amount covered by the cheque, with a view to maintain uniformity in the matter of imposition of fine in cheque dishonoured cases.