9911796707
TMI Blog2021 (1) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... f the NI Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the NI Act, it becomes evident that in a trial under Section 138 of the NI Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Section 141 of the NI Act provides constructive liability on the part of the Directors of the company or other persons responsible for the conduct of the business of the company. Though the heading of Section 141 of the NI Act reads Offences by companies , as per the Explanation to that Section company means any body corporate and includes a firm or other association of individuals ; and director in relation to a firm, means a partner in the firm. Their liability is joint and several. Consequently, therefore, when an offence is alleged to have been committed by the partnership firm, every person who, at the time the offence was committed, was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The trial court convicted and sentenced the 1st accused to pay a fine of ₹ 5,000/- each and 2 nd accused to undergo simple imprisonment for three months each in CC Nos. 592 and 593 of 1999 on the file of the Judicial First Class Magistrae Court-I, Ernakulam. Further, it was ordered to pay a sum of ₹ 1,19,000/- in CC of 1999 to the complainant under Section 357(3) of Cr.P.C. and default of payment of fine to undergo simple imprisonment for three months each more. The amount involved in CC No. 592 of 1999 is ₹ 79,160/- as per cheque bearing No. 509028 dated 26.05.1999. The concurrent conviction under Section 138 of the NI Act is sustained. Section 138 of the NI Act provides sentence of imprisonment or with fine or with both. Sentence of imprisonment is not compulsory. The object is to pay the amount covered under the cheque. Hence, the mandatory term of imprisonment awarded by the trial court, which was confirmed in appeal, is liable to be set aside. The conviction and sentence as against the 1st accused stand confirmed - While confirming the conviction of the 2nd accused, in modification of the sentence, the 2nd accused is sentenced to pay a fine of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . All the details of shipments were discussed in detail including the payment of freight charges etc. Accordingly, the accused shipped 400 bags of black pepper through the complainant as per vessel ACACIA-VOY.399 from Kochi to Hamburg. Towards the freight amount, the accused issued cheque No.509028 dated 26.05.1999 for ₹ 79,160/- drawn on the Karur Vysya Bank, Ernakulam Branch, Cochin-16. When the complainant presented the above cheque for collection through their banker, State Bank of India, Willington Island, Cochin, the same was dishonoured with an endorsement 'Exceed Arrangement' as per memo dated 18.05.1999 issued by the Karoor Vysya Bank, Ernakulam. Thereafter, the complainant sent a registered notice on 11.06.1999, demanding the amount covered under the cheque. The accused acknowledged the above notice on 14.06.1999. Even after receipt of the demand notice, the accused failed to pay the amount covered under the cheque. Hence, the complaint. 4. On service of summons, the accused appeared before the trial court. Particulars of the offence were read over and explained to the accused, to which the accused pleaded not guilty. Thereafter, the officer of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under Section 138 of the NI Act is made out against the accused, it is necessary to examine the penal provision of Section 138 of the NI Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the NI Act. Section 118 of the NI Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the NI Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. That apart, Section 139 of the NI Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for the discharge, in whole or in part, of any debt or other liability. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, it appears from the facts and circumstances that the judgment in Crl. Appeal No. 846 of 2005 has become final between the parties on identical matters. 12.The learned counsel for the revision petitioners/accused contended that the complainant is only an agent for the principal and an agent cannot personally enforce a contract under Section 230 of the Contract Act. It is contended that the transaction covered is not enforceable through court by the complainant. 13.The complainant, M/s Shipping Corporation of India, is doing business through its agent. In connection with the shipment, they are issuing bill of lading. It is the duty of its agent to collect the freight charges and deposit the same to the account of the Corporation. They are collecting freight charges as part of their business as steamer agents. Collecting freight charges for and on behalf of the M/s Shipping Corporation of India is not a case of delegation. Ext.P3 would show that shipment of the cargo of the accused was conducted through the vessel of M/s Shipping Corporation of India. According to the accused, the cheque was not issued to M/s Jairam Sons, but it was issued to M/s Leap Forwarders Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 15.For creating criminal liabilities in terms of Section 138 of the NI Act, the complainant is obliged to show that a cheque was issued; the same was presented; but, it was dishonoured; a notice in terms of the said provision was served on the person sought to be made liable; and despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the statutory notice. 16.Section 141 of the NI Act provides constructive liability on the part of the Directors of the company or other persons responsible for the conduct of the business of the company. Though the heading of Section 141 of the NI Act reads Offences by companies , as per the Explanation to that Section company means any body corporate and includes a firm or other association of individuals ; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h onus has not been discharged by the accused. Once the cheque is proved to be issued, it carries statutory presumption of consideration under Sections 118 and 139 of the NI Act. Then, the onus is on the accused to disprove the presumption at which they have not succeeded. 18.It is well settled law that when concurrent findings of facts rendered by the trial court and appellate court are sought to be aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the trial court has come to a probable conclusion. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in CC No. 592 of 1999 is ₹ 79,160/- as per cheque bearing No. 509028 dated 26.05.1999. This revision is confined to an amount of ₹ 79,160/- only. So far as CC No. 593 of 1999 is concerned, the accused preferred Crl. Appeal No. 846 of 2005 before the Sessions Court, Ernakulam. Crl. Appeal 845 of 2005 arising out of CC No. 592 of 1999 and Crl. of 1999 were heard together by the learned Sessions Judge and pronounced a common judgment on 14.02.2006. The accused challenged the judgment in Crl. Appeal 845 of 2005 before this Court. Regarding the other case, no submission was advanced by the learned counsel for the revision petitioner. The only logical inference is that on identical facts, Crl. Appeal No. 846 of 2005 has become final between the parties. 21.In view of the discussion made herein above, the concurrent conviction under Section 138 of the NI Act is sustained. Section 138 of the NI Act provides sentence of imprisonment or with fine or with both. Sentence of imprisonment is not compulsory. The object is to pay the amount covered under the cheque. Hence, the mandatory term of imprisonment awarded by the trial court, which was confirmed in appeal, is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
