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TMI Blog2022 (11) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... from today. On failure to do so, the trial court is directed to execute the sentence without fail - revision petition dismissed. - Crl. R. P. No.65 of 2017 , Crl. R. P. No.66 of 2017 and Crl. R. P. No. 67 of 2017 - - - Dated:- 31-10-2022 - THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FOR THE PETITIONER : BY ADV SRI.JACOB ABRAHAM FOR THE RESPONDENT : BY ADV SRI.P.V.ANOOP, SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR SRI.K.V.SREERAJ, ORDER A. BADHARUDEEN , J. Crl.R.P.No.65/2017 arises out of judgment in CC.No.2183/2015 dated 29.01.2016 on the file of the Special Judicial First Class Magistrate Court (N.I Act Cases), Kozhikode and the judgment dated 26.11.2016 in Crl.A.No.83/2016 on the file of the First Additional Sessions Court, Kozhikode. 2. Crl.R.P.No.66/2017 arises out of judgment in CC.No.2181/2015 dated 29.01.2016 on the file of the Special Judicial first Class Magistrate Court (N.I Act Cases), Kozhikode and the judgment dated 26.11.2016 in Crl.A.No.82/2016 on the file of the First Additional Sessions Court, Kozhikode. Crl.R.P. Nos.65/2017, 66/2017 67/2017 5 3. Crl.R.P.No.67/2017 arises out of judgment in CC.No.2182/2015 dated 29.01.2016 on the file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dergo imprisonment for 2 months and directed to pay fine of Rs.1,25,000/- and in C.C.No.2183/2015 to undergo imprisonment for 2 months and directed to pay fine of Rs.3 lakh. In default of payment of fine in all the 3 cases, the accused was sentenced to undergo simple imprisonment for one month and the fine was ordered to be paid as compensation under Section 357(1)(b) of Cr.P.C to the complainant. 9. On appeal, the learned Additional Sessions Judge confirmed the sentence, while modifying the substantive sentence in all the 3 cases to imprisonment for one day till rising of the court and ordered to pay fine of Rs.2 lakh in C.C.No.2181/2015, Rs.1,25,000/- in C.C.No.2182/2015 and Rs.3 lakh in C.C.No.2183/2015. The default sentence also was modified to 2 months in all the 3 cases. 10. While impeaching the veracity of the verdicts of the courts below, 2 points have been raised by the learned counsel for the revision petitioner to unsustain the concurrent verdicts. 11. First point argued is that, there is no proper legal notice in these cases. Therefore, the entire prosecution is vitiated. It is submitted by the learned counsel for the revision petitioner that, in the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the revision petitioner further that, if the cheques were honoured and if amount was received by Dr. K.P.Saji Kumar in his individual capacity, whether it amounts to discharge of the liability towards the firm? In this connection, the learned counsel for the revision petitioner placed a decision of a Division Bench of this Court reported in [AIR 1981 Kerala 36], M.Rajagopal and others v. K.S.Imam Ali. In the said case, a suit filed by the firm on the basis of some promissory notes was considered, with particular reference to Section 28 of the Partnership Act and it was held as under: When liability is sought to be fastened on an undisclosed principal on the strength of a negotiable instrument, it is not enough if the principal's name is disclosed in some way, but it must be disclosed in such a way that by any fair interpretation of the instrument it should be possible to hold that the undisclosed principal is the real person liable for the debt. When there is a conflict between Sections 19 and 22 of the Partnership Act on the one hand, and Ss.26, 27 and 28 of the Negotiable Instruments Act, the latter Act should prevail. A claim against a firm based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e punishable under Section 138 of the N.I. Act, the cause of action would arise only when failure by the drawer to pay the cheque amount within one month from the date of receipt/deemed receipt of notice of demand, in writing, issued within the mandate under Section 138(b) of the N.I.Act. 18. While allaying the controversy, I am inclined to refer the notices issued in these cases, copies of which are marked as Ext.P26 series. Ext.P26 series would go to show that the notice starts with I have been instructed by my client Dr. K.P.Saji Kumar, S/o. Damodharan Vaidyar, Valiery Vaidyashala, Pavannur.P.O, Narikkuni, Kozhikode District, to issue a lawyer notice as here under . 19. In view of the said description of the party's name and address, who issued the notice is the pertinent question. 20. The learned counsel for the revision petitioner argued that notices were issued by Dr. K.P.Saji Kumar, in his individual capacity, and not on behalf of the firm. According to him, the firm cannot prosecute the revision petitioner on the basis of notices issued by Dr. K.P.Saji Kumar in his personal capacity and therefore, the said notices are not sufficient to cognize the offence for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NI Act dealing with presumptions as to the negotiable instruments. As per Section 118 of the NI Act, until the contrary is proved, starting from (a) 'consideration' to (g) 'that the holder is a holder in due course' shall be presumed. That is to say presumption shall be made until the contrary is proved. Going by Section 118(g) of the NI Act, the holder of a negotiable instrument is also a holder in due course. 23. It is settled that no form of notice is contemplated under Section 138(b) of the N.I Act and what is intended is to make a demand for the payment of money consequent to the dishonour of cheque within the period provided under Section 138(b) of the N.I Act. 24. In the decision reported in [1999 KHC 622 : 1999 (3) KLT 484 : 1999 (8) SCC 221 : AIR 1999 SC 3607 : 1999 CriLJ 4571 : 1999 AIR SCW 3621 : 1999 (3) Crimes 221 : JT 1999 (8) SC 58 : 1999 (6) SCALE 402 : 1999 SCC (Cri) 1411 : 1999 (8) Supreme 617], Central Bank of India and Another v. M/s. Saxons Farms and others, the Apex Court considered the essentials of a notice and it was found that the words used in the notice, kindly arrange to make payment to avoid unpleasant action are sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd representing the firm is of no legal consequence, since the accused got the due information and knowledge about the party, to whom, he had to discharge the liability. Therefore, the first contention as canvassed by the learned counsel for the revision petitioner cannot be sustained. 26. In this matter, the fine imposed by the trial court as well as the appellate court also are under challenge, since it is contended that the trial court imposed fine more than the amount of the cheques. In this connection, the decision of the Apex Court in R.Vijayan v. Baby and Another, [AIR 2012 SC 528] is very relevant. 27. In paragraph 16 of the judgment of the Apex Court directed that unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation. Direction to pay compensation by way of restitution in regard to the loss on account of dishonour of the cheque should be practical and realistic, which would mean not only the payment of the cheque amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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