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2017 DIGILAW 1485 (KER)

Vibin v. State of Kerala

2017-12-06

ALEXANDER THOMAS

body2017
ORDER Alexander Thomas, J. 1. The petitioner is the accused in C.C No.359/2011 on the file of the Additional Chief Judicial Magistrate Court (Economic Offence), Ernakulam, for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 instituted on the basis of the complaint filed by the 2nd respondent herein. The Trial Court as per the impugned judgment dated 21/05/2014 had convicted the petitioner and sentenced to pay a fine of Rs.2,25,000/- and in default of payment of fine the accused to undergo simple imprisonment for a period of three months and the fine amount, if recovered Rs.2,20,000/- was directed to be given to the complainant as compensation under Section 357(1 )(b) Cr.P.C. Aggrieved by the said verdict of the Trial Court, the petitioner had preferred Crl.Appeal No.308/2014 before the Court of 2nd Additional Sessions Judge, Ernakulam. The Appellate Sessions Court concerned as per the impugned judgment dated 30/09/2015 has confirmed the conviction and sentence, thereby dismissed the appeal. It is aggrieved by the said concurrent findings of both the Courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Section 397 read with Section 401 of the Cr.P.C. 2. Heard Sri. Naveen Thomas, the learned counsel appearing for the revision petitioner/accused, Sri. P. George Varghese, the learned counsel appearing for R2 (complainant) and Sri. Jestin Mathew, the learned Public Prosecutor appearing for Rl, State of Kerala. Both sides argued the matter in extenso. Sri. Naveen Thomas, the learned counsel appearing for the revision petitioner/accused, apart from the various contentions raised in support of the petitioner, has also pointedly argued on the aspects mentioned herein below: That the payee in the instant cheque is a company by name M/s Western India Ceramics Pvt. Ltd. The statutory demand notice and the complaint has been made not by the said payee, M/s Western India Ceramics Pvt. Ltd but by the 2nd respondent herein (Jayashankar) who is shown as the Manager of M/s Western India Ceramics Pvt. Ltd. That there are no averments in the statutory demand notice, complaint or in the proof affidavit that the liability or debt is one which is owed by the accused to the payee company. In this regard, the learned counsel appearing for the revision petitioner/accused would contend that the issuance of the statutory demand notice as well as the institution of the complaint in question is in flagrant violation of the mandatory provisions contained in Section 138 proviso (b) as well as Section 142(1) (a) of the NI Act. It is pointed out that as per the mandatory provisions contained in the clause(b) of the proviso under Section 138, the complaint can be validly instituted only if the payee or holder in due course of a cheque makes a demand for payment of the said amount etc. So the statutory demand notice contemplated under the said provision should necessarily have been made by the payee or holder in due course. Further that the mandatory provision contained in Section 142(l)(a) of the NI Act, would mandate that notwithstanding anything contained in the code of Criminal Procedure, no court shall take any cognizance of any offence punishable under Section 138 of the NI Act except upon a complaint on writing made by the payee or the holder in due course of the cheque. In the instant case the payee of the alleged Ext.PI dishonour cheque in question is the Company concerned, M/s Western India Ceramics Pvt. Ltd. and that the complaint is liable to be drawn out only on this ground. Further it is also contended by the petitioner that there are no averments either in the statutory demand notice or in the complaint, or in the proof affidavit etc. that the payee is the company concerned and that the debt or liability is owed to the payee concerned. Whereas the averments in the demand notice, complaint and proof affidavit etc are clearly to the effect that the monies are owed to the complainant Sri. Jayashankar. Whereas in cross examination of PWl (Sri. Jayashankar) has stated that the amounts in question are owed by the accused to the payee company concerned mentioned herein above. Therefore, going by the allegations raised in the complaint, the petitioner has been called upon only to acts the gravamen of the charges and allegations mentioned therein that the liability or debt was owed by the accused to the complainant Sri. Therefore, going by the allegations raised in the complaint, the petitioner has been called upon only to acts the gravamen of the charges and allegations mentioned therein that the liability or debt was owed by the accused to the complainant Sri. Jayashankar and since the said party himself would admit in cross examination that the monies are not owed to him personally but to the payee company, the petitioner is entitled for acquittal on that ground alone as the complainant has given evidence against the very factual averments raised in his own complaint and that even Section 313 Cr.P.C, the complainant Sri. Jayashankar has retreated that the liability in question is owed by the accused to him (Sri. Jayashankar) etc. 3. This Court is of the view that some of the aspects of the matter, more particularly, the arguments raised by the learned counsel for the revision petitioner/accused based on the issues are arising out of non issuance of notice by the payee company as well as the omission to file the complaint by the payee company would require serious consideration afresh. In this view of the matter, in the impugned appellate judgment dated 30/09/2015 passed by the Sessions Court, Ernakulam in Criminal Appeal No.308 of 2014 is set aside and the Criminal Appeal will stand restored to the file of the said Appellate Court for considering the matters in the appeal afresh. The Appellate Court would consider not only the above said contentions noted herein above as raised by the counsel for the revision petitioner but also all the contentions from both sides and should finally dispose of the appeal after affording opportunity both sides. 4. The learned counsel appearing for the appellant/accused also the learned counsel appearing for the respondent/complainant will appear before the Appellate Court concerned at 11 a.m. on 1/07/2017. The Appellate Court will be given a date for hearing convenient to both sides and dispose of the same without much delay, preferable within a period of 4 months from the date of production of certified copy of this judgment. With these observations and directions, the Crl.R.P. stands finally disposed of.