Biju John Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939** ## **Crl.Rev.Pet.No. 1138 of 2017 ()** ## **--------------------------------** **CRA 163/2016 OF ADDITIONAL DISTRICT AND SESSIONS COURT - VII, ERNAKULAM** ## **ST 28/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT. - III, KOCHI** **-------------------** ## **PETITIONER/APPELLANT/ACCUSED :** **-----------------------------------------** **BAIJU JOHN THOMAS, PARTNER B & V ASSOCIATES, CC NO.42/2393, PRASANTHI, VYTTILA, THAMMANAM ROAD, PONNURUNNI, KOCHI-19.** ## **BY ADVS.SRI.SANIL KUNJACHAN SMT.T.M.RESHMI** ## **RESPONDENT(S)/STATE AND THE COMPLAINANT :** **--------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. BENNY AUGUSTINE, S/O AUGUSTINE, SRATTEL HOUSE, C.C.17/1618B MUNDAMVELI P.O., KOCHI 682507.** - **R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY R2 BY ADV. SRI.NIREESH MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## **ALEXANDER THOMAS, J.** **.................................................................... Crl.RP No.1138 of 2017 .................................................................... Dated this the 20[th] day of October, 2017.** ## **O R D E R** The petitioner herein has been arrayed as accused for offence punishable under Section 138 of the Negotiable Instruments Act in ST No.28/2011 on the file of Judicial First Class Magistrate Court-III, Kochi instituted on the basis of a complaint filed by the second respondent herein. Ext.P1 dishonoured cheque dated 22.9.2008 is for Rs.2,25,000/-. The trial court as per the impugned judgment rendered on 6.5.2016, had convicted the petitioner for the abovesaid offence and had sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs.3,00,000/-, and in default thereof to undergo simple imprisonment for three months. The fine amount, if realised, is ordered to be paid to the complainant under Section 357(1) of the Code of Criminal Procedure. The appellate court concerned (Court of Additional Sessions Judge-VII, Ernakulam) as per the impugned judgment rendered on 19.6.2017 has dismissed Crl.Appeal No.163/2016 filed by the petitioner (accused) confirming the finding of conviction and the sentence imposed on the petitioner (accused). It is challenging these judgments of the courts below that the petitioner (accused) has filed the Crl.RP1138/2017 -2- instant revision petition. 2. This Court as per order dated 27.9.2017 has admitted the revision petition and directed issuance of notice to R-2 (complainant) by speed post returnable in two weeks. Learned Public Prosecutor had taken notice for R-1 (State). This Court has also granted interim order of stay of execution of the impugned sentence until 31.10.2017 as per order dated 27.9.2017 on Crl.MA No.5012/2017 in this Criminal Revision Petition. Now it is reported by the Registry that service of notice on R-2 (complainant) has been duly complete. But there is no appearance for that party. 3. Heard Sri.Sanil Kunjachan, learned counsel appearing for the revision petitioner (accused) and Sri.Saigi Jacob Paletty, learned Prosecutor appearing for R-1 (State). Inspite of due service of notice on R-2, there is no appearance for that party. 4. The brief of the case of the complainant is to the effect that in discharge of the liability of Rs.2,25,000/- owed by the revision petitioner (accused) to the complainant, the revision petitioner (accused) had executed Ext.P1 cheque dated 22.9.2008 for Rs.2,25,000/- drawn from his account and payable in favour of the complainant. The said cheque when presented, resulted in dishonor, as Crl.RP1138/2017 -3- evident from Ext.P2 Bank memo. The complainant was thereupon forced to send Ext.P3 statutory demand notice dated 10.10.2008 calling upon the accused to pay off the amount covered by the said cheque within 15 days from the date of receipt of the said notice. The said notice so sent by registered post has been duly served on the accused as per Exts.P4 and P5 postal records. As the amount was not repaid, the complainant after adhering to the requisite formalities, has instituted the present complaint, which resulted in trial. During the trial, the complainant has been examined as PW1 and marked Exts.P1 to P6 documents. The defence has marked Ext.D1 document, but has not adduced any oral evidence. 5. As per the evidence of PW1 (complainant), the accused and the complainant are known to each other and that the accused happened to be the partner of a partnership firm, which was running a business concern, and that for meeting an acute financial emergency in the running of the business of the said partnership firm, the accused had sought a personal financial help of the complainant to advance a sum of Rs.2 lakhs. It has also come out in evidence that at the relevant time of the transaction, the complainant was working as a sales executive in the said partnership firm of which the accused was one of the partners. PW1 Crl.RP1138/2017 -4- would state that Ext.P6 Bank slip dated 2.8.2008 would prove that he had remitted an amount of Rs.2 lakhs to the Bank account of the partnership firm of which the accused is a partner. The consensus between the parties was that the accused would repay a total amount of Rs.2,25,000/-, which would also be inclusive of interest in respect of the above said personal loan amount of Rs.2,00,000/-, and that the instant Ext.P1 cheque was issued for Rs.2,25,000/- in discharge of the said liability which resulted in dishonor, etc. But it has come out in evidence that Ext.P1 cheque has been drawn from the Bank account maintained by the partnership firm, even though the signatory to the said cheque is the accused, who is one of the partners of the said partnership firm. It is also not in dispute that the said partnership firm has not been arrayed as an accused in the instant complaint proceedings. 6. The courts below, more particularly, the trial court, has taken the view that since the version of the PW1 is to the effect that the transaction entered into between the parties was a personal transaction between the complainant and the accused, and that since the complainant had not entered into any loan transaction with the partnership firm, non arraying of the partnership firm is of no consequence to the maintainability of the impugned complaint Crl.RP1138/2017 -5- proceedings. On this reasoning, the courts below have found that the non arraying of the partnership firm is not fatal to the maintainability of the complaint. Further that the evidence of PW1 is sufficient to convict the petitioner for the offence punishable under Section 138 of the NI Act. 7. Sri.Sanil Kunjachan, learned counsel appearing for the revision petitioner (accused) would submit that it is beyond dispute that the disbonoured cheque in question involved in this case has been drawn from the account maintained by the above said partnership firm of which the accused is one of the partners, and further that the said partnership firm has not been arrayed as an accused in the complaint proceedings, even though the cheque has been drawn from the account of the partnership firm. Learned counsel for the revision petitioner (accused) would further contend that the non arraying of the partnership firm as accused in the complaint proceedings is fatal, going by the dictum laid down by the Three Judge Bench decision of the Apex Court in **Aneeta Hada v. Godfather Travels & Tours (P) Ltd.** , reported in (2012) 5 SCC 661 = 2012(2) KLT 736. 8. The Apex Court in the decision in **Aneeta Hada** ( _supra_ ), has categorically held that if the dishonoured cheque in question has been drawn from a bank account maintained by a Company or Crl.RP1138/2017 -6- partnership firm or any other body corporate as envisaged under Sec.141 of the NI Act, then the complaint for the offence punishable under Section 138 of the NI Act could be validly maintained only if the drawer of the cheque (company/partnership firm/any other body corporate) is arrayed as an accused in the complaint proceedings, apart from arraying the directors or partners, who are responsible for the affairs of the business of that body, as co-accused. Therefore, both the courts below have egregiously erred in holding that the non-arraying of the partnership firm as an accused is not fatal to the maintainability of the complaint. The said finding of the courts below is thus vitiated by grave illegality and impropriety. Accordingly, it is ordered that the complaint is not maintainable solely on the ground that the partnership firm on whose account the cheque in question has been drawn, has not been arrayed as an accused in the impugned complaint proceedings. 9. The upshot of the aforesaid discussion is that the impugned judgments are liable to be set aside and the petitioner (accused) is entitled to an order of acquittal. Accordingly, it is ordered that the impugned judgments of both the courts below are set aside. Resultantly, the accused is acquitted of the offence punishable under Section 138 of the NI Act and he is set at liberty. Crl.RP1138/2017 -7- 10. It is pointed out by Sri.Sanil Kunjachan, learned counsel appearing for the revision petitioner that the revision petitioner (accused) had deposited an amount of Rs.30,000/- before the trial court in this case during the appellate consideration. If that be so, the trial court will take immediate steps to ensure that any such amount deposited by the accused before the trial court in relation to this case is forthwith released to the accused on an application in that regard is made by that party. Registry will forward copies of this judgment to the trial court and to R-2 (complainant), for information. With these observations and directions, this Criminal Revision Petition will stand finally disposed of. ## **(ALEXANDER THOMAS, JUDGE)** jg