2018 (10) TMI 1213 - HC - Indian Laws

Dishonor of Cheque - Section 138 of The Negotiable Instruments Act - rebuttal of presumption u/s 139 of Negotiable Instruments Act - Held that - It appears that both the trial Judge as well as the Appellate Judge has committed an error in pronouncing the Judgment as against one accused whereas there was two accused arrayed in the complaint filed by the complainant. I am saddened to note that even the Additional Session Judge, while dealing with the Criminal Appeal, did not notice the error committed by the trial Judge and he affirmed the Judgment of conviction passed by the trial Judge, as it is. In this connection, it has to be stated under the Code of Criminal Procedure that certain procedures have been prescribed and they have to be followed while imposing sentence of imprisonment by the Metropolitan Magistrate Court or Criminal Court to any person. In the instance case, while the second accused was not shown in the Judgment it is not known as to how the second accused could be imposed with a sentence of six months by the Trial Magistrate. Even prior to the quantum of sentence passed both the Trial Court and the Lower Appellate Court they have proceeded as if there is only one accused. Yet another issue is that, the Appellate Court had treated the appeal as if one year sentence was awarded by the Trial Magistrate, while it is only six months and furthermore, here confirmed the sentence for one year, which is bad in law. Revision allowed.

Summary

Issues:
1. Validity of judgment passed by trial court and appellate court.
2. Existence of complainant company during trial proceedings.
3. Amendment of cause title in the revision petition.
4. Oversight of array of parties in the complaint by trial and appellate courts.
5. Error in pronouncing judgment against only one accused when two were involved.

Issue 1: Validity of Judgment
The petitioner sought to set aside the judgment confirming the conviction and sentence passed by the trial court and the appellate court. The petitioner argued that the complainant company was not in existence at the time of the judgment, as it had been amalgamated with another company. The petitioner contended that criminal proceedings initiated by a non-existing entity were invalid, challenging the sustainability of the conviction.

Issue 2: Existence of Complainant Company
The respondent argued for an amendment to reflect the amalgamation of the complainant company with another entity. The petitioner opposed the amendment, stating it should have been sought earlier. The court noted the amalgamation order predating the judgment, indicating that the complainant company was non-existent during the trial. The court concluded that amending the cause title at the revision stage was impermissible.

Issue 3: Amendment of Cause Title
The court highlighted the timeline of events leading to the amalgamation of the complainant company before the trial concluded. Emphasizing that the complainant was non-est in the eyes of the law during the trial, the court rejected the amendment request at the revision stage, citing the complainant's lack of legal standing.

Issue 4: Oversight of Array of Parties
The court criticized the trial magistrate for convicting only one accused when two were named in the complaint. Both trial and appellate courts failed to address the array of parties properly, leading to a flawed judgment. The court highlighted the importance of correctly identifying all accused parties in judicial proceedings to ensure due process.

Issue 5: Error in Pronouncing Judgment
The court noted discrepancies in how the trial and appellate judges handled the case, particularly in sentencing and identifying the accused parties. The court condemned the oversight and errors in the judgments, emphasizing the need for adherence to legal procedures and the correct application of the law.

In conclusion, the High Court set aside the judgments of the trial court and the appellate court, remitting the case for fresh consideration. The court granted liberty to the complainant for amending the cause title if advised, with a directive for expedited proceedings without allowing fresh evidence. The judgment highlighted the importance of procedural correctness and the proper identification of parties in criminal proceedings to uphold the principles of justice.