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TMI Blog2018 (10) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... , Chennai in C.C.No.8607 of 2007, dated 28.04.2016. 2. The convicted first accused company is the revision petitioner herein. The respondent-M/s.Deepti Integrated Logistics Pvt., Ltd., is the complainant on the file of the learned Metropolitan Magistrate, Fast Track Court-III, Saidapet, Chennai in C.C.No.8607 of 2007. After trial, the trial court found both the first accused company as well as it's director, the second accused guilty of the offence under Section 138 of The Negotiable Instruments Act and convicted the first accused to pay the cheque amount as compensation and the second accused was sentenced to undergo simple imprisonment for a period of six months. Aggrieved by the same, the accused fled an appeal in Crl.A.No.153 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant company, which was non-existing at that time, is not entitled to initiate criminal proceedings against the accused company and as such, the judgment of conviction passed by both the courts below cannot be sustained. 5. Per contra Mr.V.Karthik, learned Senior counsel appearing on behalf of the respondent herein would contend that they have filed Crl.MP.No.13768 of 2017, to amend the cause title in the revision petition in Crl.RC.No.974 of 2017 on the ground that the original private complainant before the Judicial Magistrate by name M/s.Deepti Integrated Logistics Pvt., Ltd., has subsequently amalgamated with the company called Emgee Infrastructure Holdings (India) Private Limited and therefore, the amendment is necessary. 6. A cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... During the course of entire trial proceedings, the complainant company M/s.Deepti Integrated Logistics Pvt., Ltd., was represented by its representative Srinivasa Roa from 12.11.2007 to 28.04.2016 till the pronouncement of judgment by the trial court. (iv) Aggrieved by the conviction and sentence passed by the trial court, the accused company preferred an appeal on 24.05.2016 before the learned Principle Session Judge in C.A.No.153 of 2016 and the same was made over to Learned XV Additional Sessions Judge. The appellate Judge, after hearing both sides, dismissed the appeal on 27.06.2017. (v) Aggrieved by the conviction and sentence of both the courts below, the accused company filed the present Criminal Revision Petition on 18.07.2017 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted. 9. The complainant company has filed C.C.No.8607 of 2007 for alleged offence under Section 138 of Negotiable Instruments Act. In connection with the dishonour of cheque said to have been issued by M/s.Devadass Reddy Property Developers & Builders Pvt., Ltd., namely the accused company and which was returned on the ground of insufficient funds. At this juncture, it remains to be stated that the trial in the above said C.C.No.8607 of 2007 had commenced on 23.03.2008. While the defence examined the defence witness was on 06.07.2012. However, much prior to the examination of defence witness, by virtue of the order dated 24.12.2010 passed in Company Application No. 1466 of 2010 in Company Petition No. 80 of 2010, on the file of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of trial, the fact that the complaint was instituted as against two accused was not brought to the notice of the Appellate Court. 12. On a perusal of the order dated 28.04.2016 passed in C.C.No.8607 of 2007 it is seen that the trial Judge proceeded as if there is only one accused in the case. However, in the operative portion the Judicial Magistrate has chosen to convict the accused 1 and 2 for the offence under Section 138 of Negotiable Instruments Act and awarded varied sentence to both the accused. The appellate Judge has also overlooked this fact which could be evident from paragraph No.2 of the judgment which makes reference as if the "first accused company represented by its Director Mr. R. Devadass Reddy, the second accused he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entence 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. In any event, the manner in which the trial Judge as well as the Appellate Judge has pronounced the Judgment of Conviction has to be deprecated. 15. In the result criminal revision No. 974 of 2017 is allowed: 1. The conviction and sentence passed in the Judgment dated 27.06.2017 made in Crl.A.No.153 of 2016 on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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