Allowed

K.K. Balakrishnan v. P.B. Hamsa

Kerala HC2 Jun 2008Crl.Rev.Pet/286/2001

Case brief

AI extract

What is this about?

The High Court set aside convictions of a cooperative society president under Section 138 of the Negotiable Instruments Act for failure of complaint to specifically aver that he was in charge of the society's affairs as required under Section 141. The Court acquitted the petitioner in three cases.

What did the court decide?

Petitioner acquitted in three cases by set aside of conviction and sentence. Appeal in one case remitted to appellate court for disposal in accordance with law.

K.K. Balakrishnan Vs P.B. Hamsa — Cheque Dishonour | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER

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MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930

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Crl.Rev.Pet.No. 286 of 2001()

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---------------------------------------CRA.430/2000 of SESSIONS COURT, ERNAKULAM CC.67/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM

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REVN. PETITIONER: APPELLANT/ ACCUSED

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K.K.BALAKRISHNAN, C.I. SECTION, T.E..K., ANGAMALY, ERNAKULAM DISTRICT.

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BY ADV. SRI.ANIL THOMAS(T) SMT.K.V.RESHMI

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RESPONDENTS:RESPONDENTS/ COMPLAINANT AND STATE

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1. P.B.HAMSA, S/O. M.BAVA, VII/ 772, DARE SALAM ROAD, KOCHI 2.

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2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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ADV. SRI.K.G.SARATHKUMAR FOR R1 BY PUBLIC PROSECUTOR SRI.JAI GEORGE

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2008, ALONG WITH CRRP. NOS. 326/2001,267/2002 AND 943/2001 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER ON CRL.MP. NO.1208/2001 IN CRP.RP. NO.286/2001

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DISMISSED

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02.06.2008 SD/- A.K.BASHEER, JUDGE

/ TRUE COPY/

P.A. TO JUDGE

tss

A.K.BASHEER, J.

- - - - Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002

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Dated this the 2^nd day of June 2008

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ORDER

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These three revision petitions are by the common accused who was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of three different complainants. Since a common issue arises for consideration in these cases, they are being disposed of by this common order.

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Petitioner who was stated to be the President of a Cooperative Society in the name and style of 'Sasya' was prosecuted along with the Secretary of the Society for the offence under Section 138 of the Act. The gist of the allegation against the petitioner and the co-accused was that they had purchased large quantities of vegetables from the complainants who were vending vegetables in the Ernakulam market.

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The alleged purchases were made by the two accused in the year 1995. The cheques issued by the petitioner and the coaccused who was stated to be the Secretary of the Society (he passed away before the trial commenced) were dishonoured when they were presented for encashment. The statutory notices issued

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Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002

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by the complainants did not evoke any response. It was therefore that the complaints were filed against the petitioner and the coaccused. The trial court found the petitioner, who alone faced trial, guilty and convicted and sentenced him to undergo imprisonment for various terms and also to pay fine. The learned Sessions Judge before whom the appeals came for consideration confirmed the order of conviction. However, the sentence was reduced.

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It is contended by Miss.Reshmi, learned counsel for the common petitioner that the courts below were not justified in holding the petitioners guilty in the above cases in as much as the society was not impleaded in the complaints. More importantly, there was no averment in the complaint that petitioner in his capacity as the President was in charge of or responsible for the affairs of the society. There was also no averment that the petitioner had made the purchase for and on behalf of the society or as authorised by it. Even assuming the petitioner had signed the cheque as a co-signatory along with the Secretary, since the society was not arraigned as one of the accused, the complaints ought to have been dismissed. It is contended that the courts below were

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Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002

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not justified in overlooking the statutory mandates contained in Sections 138 and 141 of the Act.

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Learned counsel has taken me through the averments in the three complaints. It is true that in the cause title of the complaint, petitioner was described as “President, Sasya, Ernakulam District Fruits and Vegetables Marketing Co-Operative Society Limited.” But the specific allegation in the complaint reads thus: “accused persons purchased vegetables from the complainant under the condition that they will pay the amount jointly. They jointly issued a cheque . . . . . .”. It is true that there was a specific averment that accused were the President and Secretary of the Society in question. There was no other averment to indicate that petitioner or the co-accused in their capacity as the President and Secretary respectively of the Society were in charge of or responsible for the affairs of the society.

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I have also perused the oral testimony of the respective complainants in the three cases. The complainants have not stated anything about the duties and responsibilities of the President or the Secretary and also whether the petitioner along with the

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Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002

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Secretary had made the purchases for and on behalf of the Society or as authorised by it. Learned counsel for the petitioner has invited my attention to the following decisions of their Lordships of the Supreme Court. Saroj Kumar Poddar V. State (NCT of Delhi) and another [(2007) 3 SCC 693] and Sabitha Ramamurthy and another V. R.B.S.Channabasavaradhya [(2006) 10 SCC 581] .

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In Sabitha Ramamurthy's case (supra), Supreme Court held that it is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the accused person was in charge of, and responsible for the conduct of business of the company. Their Lordships held that such an averment is an essential requirement of Section 141 and has to be specifically made in a complaint. Without such averment, the requirements of Section 141 cannot be said to be satisfied. In Saroj Kumar's case (supra) also a similar view was taken by the apex court.

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In Criminal R.P.286/01, which arose from C.C.67/1998, the trial court found the petitioner guilty and convicted and sentenced him to undergo rigorous imprisonment for four months and to pay a

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Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002

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sum of Rs.6,000/- to be paid as compensation under Section 357(3) of the Code of Criminal procedure. In appeal, the substantive sentence was reduced and petitioner was directed to suffer imprisonment till the rising of the court. He was further directed to pay an amount of Rs.12,500/- as fine with a default sentence. It was further directed that if the fine amount was realised 12,000/- shall be paid to the complainant as compensation.

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In Crl.R.P.326/01, which arose from C.C.68/1998, petitioner was sentenced to undergo rigorous imprisonment for 8 months and to pay a compensation of Rs.15,000/- under Section 357 (3) of the Code. In appeal, the substantive sentence of imprisonment was reduced to imprisonment till the rising of the court. Petitioner was directed to pay Rs.23,500/- as fine, out of which Rs.22,500/- was directed to be paid to the complainant as compensation.

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In Criminal R.P.943/01, which arose from C.C.69/98, the trial court convicted and sentenced the petitioner to undergo rigorous imprisonment for four months and to pay a fine of Rs.14,600/- out of which RS.13,600/- was directed to be paid to the

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Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002

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complainant as compensation. In appeal, the substantive sentence of imprisonment was reduced to three months' simple imprisonment and the default sentence was reduced to one month.

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Having heard learned counsel for the petitioner and having perused the materials available on record, I am satisfied that petitioner is entitled to get the benefit of the dictum laid down by their Lordships of the Supreme Court in the two decisions cited supra. Therefore, the order of conviction and sentence passed against the petitioner in the three cases is set aside. Petitioner is found not guilty and he is acquitted.

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Crl.R.P.167/02:

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Petitioner who was tried for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.64/98 on the file of the Additional Chief Judicial Magistrate's Court, Ernakulam was found guilty. He had challenged the above order of conviction and sentence before the Sessions Court, Ernakulam in Criminal Appeal 299/2000. The appeal was dismissed by the learned V^th Additional Sessions Judge for the reason that the petitioner had

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Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002

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failed to take steps to issue notice to the respondent No.1/complainant.

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Having heard learned counsel for the petitioner and having perused the materials available on record, I am satisfied that the petitioner is entitled to get an another opportunity to prosecute the above appeal. Therefore, the impugned order is set aside. The case is remitted back to the appellate court for disposal in accordance with law. Petitioner shall appear before the appellate court on September 15, 2008.

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(A.K.BASHEER, JUDGE)

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jes

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Crl.R.P.Nos.286, 326, 943 OF 2001, 167 of 2002

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A.K.BASHEER, J.