Joe C. Vattacherial and M/s Joecees Caterers & Food Suppliers (p) Ltd. v. M/s Gujarat Lease Finance Ltd and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935** **Crl.Rev.Pet.No. 1928 of 2003 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA 265/2002 VTH ADDL.SESSIONS COURT, ERNAKULAM, DATED 25-06-2003** **AGAINST THE JUDGMENT IN CC 236/2000 of J.M.F.C.-I, KOCHI-5, DATED 06-04-2000.** **REVISION PETITIONER/APPELLANT/ACCUSED:-------------------------------------** **JOE C.VATTACHERIL, JOECEES CATERERS & FOOD SUPPLIERS (p) LTD., VATTACHERIL, T.K. ROAD, MANJADI, THIRUVALLA.** **BY ADVS.SRI.T.M.MATHAI SRI.V.J.JOHN** **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:-------------------------------------------** **1. M/S.GUJARAT LEASE FINANCE LTD; MANNANCHERIL BUILDING, KANNANTHODATHU LANE, VALANJAMBALAM, ERNAKULAM, REP: BY ITS BRANCH-IN-CHARGE RAJEEV P.R.** **2. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.VARGHESE C.KURIAKOSE R1 BY ADV. SRI.JACOB SEBASTIAN R1 BY ADV. SRI.PRAVEEN K. JOY R2 BY PUB. PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = Crl.R.P.No.1928 of 2003. = = = = = = = = = = = = Dated this the 23[rd] July, 2013 ## **O R D E R** The Revision Petitioner is the accused in CC.No.236/2000 on the files of the Court of Judicial First Class Magistrate-I, Kochi-5. He was prosecuted under Section 138 of the Negotiable Instruments Act (for short 'the NI Act') on a complaint filed by the first respondent herein. After trial, the learned Magistrate found the first respondent guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs.56,500/- (Rupees fifty six thousand and five hundred only) under Section 357(3) of the Code of Criminal Procedure. Though he had preferred Crl.Appeal No.265/2002 before the Vth Additional Sessions Court, Ernakulam, the learned Sessions Judge after appreciating the evidence on record confirmed the sentence as such **Crl.RP.No.1928/2003.** 2 without any interference and dismissed the appeal. This Revision Petition is filed challenging the concurrent findings of conviction and sentence imposed on the Revision Petitioner by the impugned Judgment under challenge on various grounds. 2. The case of the complainant is that the complainant is a company incorporated under the Indian Companies Act. The company is engaged in selling vehicles on hire purchase agreement. It was alleged that there was business transaction between the complainant and the accused and towards partial discharge of the amount due to the complainant, the accused issued three cheques for Rs.18,736/- each drawn on 1.4.1999, 1.6.1999 and 1.7.1999 respectively in favour of the complainant. When those cheques were presented for collection, the same were dishonoured for want of sufficient funds. When the complainant caused to send a lawyer notice demanding cheque amount, the notice was returned as unclaimed and he has not paid the cheque amount. Thus the accused had **Crl.RP.No.1928/2003.** 3 committed the offence punishable under Section138 of the NI Act. 3. In defence, the accused contended that the cheques were handed over to the complainant only as a security and the money was paid by the accused. This contention was raised before the courts below and got rejected concurrently. 4. To prove the execution and issuance of the cheque, the power of attorney holder of the complainant company was examined as PW1 and Exts.P1 to P9 were marked. In defence, no evidence has been adduced by the accused except Ext.D1 hire purchase agreement. The main ground raised by the accused was that Pw1 has no authority to file the complaint and also to adduce evidence for the complainant company. In short, there is no proper authorisation to Pw1 to file the complaint. The another contention is that the complainant has not discharged the initial burden of proving execution and issuance of the cheque. The another contention raised in this Revision **Crl.RP.No.1928/2003.** 4 Petition is that the jurisdiction to file the complaint under Section 138 of the NI Act is confined to court at Ahammedabad only as per Ext.D1 agreement. Therefore, the complaint was not maintainable before the court at Ernakulam. 5. Going by the impugned Judgment it could be seen that all these three contentions were raised before the courts below and got rejected concurrently. The appellate court after re-appreciating the evidence found that Ext.P9 letter of authority dated 10.9.1998 signed by the Managing Director of the company gives proper authorisation to Pw1 to represent the company in the proceedings. Further, it was mentioned in Ext.P9 that the said authorisation was given as per the resolution of the Board of Directors of the company dated 26.9.1997. Ext.P8 is the extract of the minutes of the Board of Directors of the company held on 26.9.1997. As per this resolution, the Managing Director Sri.Vasanth Shah was authorised to initiate all legal proceedings. So, the letter of authority signed by the **Crl.RP.No.1928/2003.** 5 Managing Director on behalf of the company gives proper power and authority to Pw1 to prosecute the complainant under Section 138 of the NI Act. As rightly found by the court below, these documents proved that the signatory of the complaint was the person who authorised to sign on behalf of the company and he was also given evidence in support of the averments raised in the complaint. Therefore, I find that there is no illegality or impropriety in the above said findings. 6. Next is the question of jurisdiction. The contention raised in the Memorandum of Revision Petition is that, as per Ext.D1 hire purchase agreement, the court situated at Ahammedabad alone had jurisdiction to entertain the complaint, so no court other than courts at Ahammedabad could have entertained the complaint. Admittedly, the transaction took place at Ernakulam. The cheques were presented for encashment through Bank of Madhurai, Ernakulam Branch. Since the transaction took place at Ernakulam, the contention that only the court at **Crl.RP.No.1928/2003.** 6 Ahammedabad has jurisdiction cannot be sustained at all. That apart, the settled legal position is that jurisdiction conferred by statute cannot be ousted by the agreement between the parties. Therefore, I find that the court at Ernakulam in which this complaint has been filed has jurisdiction to entertain this complaint and the complaint is maintainable at all. 7. After considering both oral and documentary evidence adduced by the complainant, the trial court found that the complainant had successfully discharged the initial burden of proving the execution and issuance of the cheques. Whereas, the accused failed to rebut the presumption under Section 118(a) and 139 of the NI Act, which stood in favour of the complainant. There is no illegality or impropriety in the said findings. I do not find any kind of perversity in the appreciation of evidence from which those findings have been arrived at. Consequently, I confirm the conviction. 8. Coming to the sentence I find that the sentence **Crl.RP.No.1928/2003.** 7 imposed on the Revision Petitioner is disproportionate and excessive with the nature and gravity of the offence. 9. The Supreme Court, in the decision in **Kaushalya Devi Massand v. Roopkishore** (AIR 2011 SC 2566) **,** held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in **Vijayan v. Baby** (2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect. 10. In view of the above decisions I am inclined to reduce and modify the sentence imposed on the Revision Petitioner. In modification of the sentence imposed on the Revision Petitioner by the trial court and confirmed by the 8 ## **Crl.RP.No.1928/2003.** appellate court, the substantive sentence of simple imprisonment for six months will stand reduced and modified to simple imprisonment for one day till rising of the court. 11. Resultantly, the Revision Petitioner will stand sentenced as follows: (i) The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. (ii) The Revision Petitioner shall pay a compensation of Rs.56,500/- (Rupees fifty six thousand and five hundred only) to the complainant/first respondent. (iii) In default, the Revision Petitioner shall undergo simple imprisonment for three months. The above Revision Petition is disposed of as above. Sd/- **K. HARILAL, (JUDGE)** ## **Kvs/-** **// true copy //**