TMI Blog2005 (2) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... to the 1st and 2nd accused were returned unserved. Notice issued to the 3rd accused was allegedly served on him and acknowledged under Ext. P8. There was no reply. No payment was forthcoming. It was, in these circumstances, that the complainant came to court with the complaint under Sec. 138 of the N.I. Act. 2. PW. 1 was examined and Exts.P1 to P10 were marked by the complainant. The accused denied the offence alleged against them. They raised various contentions. It was contended that the cheque was not issued for the due discharge of any legally enforceable debt/liability. Signature of the 2nd accused in the cheque was disputed. It was further contended that the 2nd accused is 'K.J. Joseph' as shown in the complaint and not 'Savio Joseph' in whose name notice of demand - Ext.P5 was allegedly issued. It was further contended that there was no proper service of notice on accused Nos. 1 and 2. With the help of Ext.P8, it was contended that notice was not served on the 3rd accused as alleged. The 1st accused took up a plea of alibi. D.Ws. 1 to 4 were examined on the side of the accused. The accused relied on Exts.D1 to D3. D.W.1 is one Beckkar referred to in Ext.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the 2nd accused. That he is competent to sign the cheque on behalf of the 1st accused - company is not disputed. That the 3rd accused is another Director competent to sign the cheque and operate the account is also not disputed. That the 3rd accused has signed the cheque is clearly admitted. That the cheque was handed over by D.W.1 to P.W.1 on behalf of the company under intimation to the company as indicated in Ext.D1 is also conclusively established. The memo of dishonour clearly shows that the signature of the 2nd accused appearing in the cheque does not tally with the specimen signature. There is no serious or worthwhile attempt to deny and dispute the signature appearing Ext.P1 cheque as that of the 2nd accused. In these circumstances, the apology of a contention raised that the 2nd accused has not signed the cheque cannot obviously succeed. Less said about the plea of alibi, the better. The mere interested oral testimony of D.W.2 and his employees are not sufficient to discharge the burden on the accused to prove alibi. 8. It is next contended that the 2nd accused is 'K.J. Joseph' and not 'Savio Joseph' to whom notice is seen to have been issued as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown in Ext.P8 indicates that the address of the 3rd accused shown therein is not the address of the 3rd accused shown in Ext.P5 notice. Much is attempted to be made out of this incongruity. I take note of the same. The theoretical possibility of Ext.P8 having been issued to acknowledge some other notice cannot be ruled out. But that does not impress me as a practical probability. Only a practical probability and not a fanciful possibility can succeed in generating a reasonable doubt in the mind of the court. No such doubt is generated on the facts of this case. Regarding service of notice to the 3rd accused, the 3rd accused has no specific case that he received any notice other than Ext.P5 notice under Ext.P8. Ext.P8 shows that the said acknowledgment was for a postal article received from the counsel who issued Ext.P5. Third accused could easily have produced the said letter which he allegedly received under Ext.P8 to support his attempt to generate a reasonable doubt in the mind of the court. That having not been done, the present attempt appears to be only a vague one without conviction to pick holes in the case of the complainant. 11. It is in this context that the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 'drawer' of the cheque is defined in Sec. 7 of the N.I. Act in the following words: 7. 'Drawer'.-- The maker of a bill of exchange or cheque is called the 'drawer'. Under Sec. 138 of the N.I. Act, the person who has drawn the cheque must be deemed to be the drawer of the cheque. The expression 'person' is not defined in the N.I. Act; but is defined in Sec. 11 of the IPC in the following words: 11. 'Person',- The word 'person' includes any Company or Association or body of person, whether incorporated or not. 14. It is, thus, evident that a natural person, an incorporated person or even an unincorporated association or body, of person like a partnership can be a person under Sec. 11 IPC. Consequently, such entity can be a person under the body of Sec. 138 of the N.I. Act. The 'drawer', under Sec. 7 of the N.I. Act can, therefore, be undoubtedly a natural person or an incorporated person or a body of persons whether incorporated or not. In the instant case, the drawer of the cheque is the company - a juristic deemed person. The 1st accused - company is, thus, the drawer - the person who has drawn the cheque. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under proviso (b) to Sec. 138 it follows that accused 2 and 3 who face prosecution under Sec. 141 of the N.I. Act are not entitled to any notice under proviso (b) to Sec. 138 of the N.I. Act. 19. Having come to such conclusion on the basis of first principles and analysis of the statutory provision, we now have to look for precedents, if any. I take note of the fact that a Division Bench of the Calcutta High Court in Dilip Kumar Jaiswal v. Debapriya Banerjee, (1992 (2) KLT 35) and a single Bench of the Andhra Pradesh High Court in the decision reported in Suraj Theatre, a partnership firm by Managing Partner Ors. v. Smt. Kakaria Bharathi Another (1997 (4) Cri. 496) have taken the same view. However, a single Bench of the Punjab and Haryana High Court appears to have taken a different view in Harbhajan Singh v. State of Haryana (1992 (1) KLT SN Case No. 46 at page 35). I have gone through the reasons that weighed with the courts as revealed from the decisions cited above. I take note of the fact that the Punjab and Haryana High Court had not considered the language of Secs. 138 and 141 of the N.I. Act specifically. Nor is the purpose of notice under Sec. 138 of the N.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Anilkumar v. Shammy (2002 (3) K.L.T. 852). I am satisfied that, in the facts and circumstances of this case, it is not necessary to insist on imposition of any deterrent substantive sentence of imprisonment on the petitioners. Leniency can be shown on the question of sentence. But it must, at the same time, be zealously ensured that the complainant, who has been compelled to fight three rounds of legal battle and to wait from the year 1999 for the redressal of his grievance, is adequately compensated. I am satisfied that the challenge against the sentence can succeed only to the above extent. 23. The courts below have chosen to impose a sentence of fine of ₹ 5,000/- on the first accused company and simple imprisonment for a period of six months each on accused 2 and 3. All the accused together are directed to pay the cheque amount as compensation under Sec. 357(3) of the Cr.P.C. No default sentence is seen imposed. 24. The learned counsel for the petitioners contends that the sentence imposed is excessive. He requests that the indictees may, at any rate, be spared of any deterrent substantive sentence of imprisonment. I find force in that contention. I find no rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
