TaxTMI 
TaxTMI 
2022 (11) TMI 489
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.... on the file of the Special Judicial first Class Magistrate Court (N.I Act Cases), Kozhikode and the judgment dated 26.11.2016 in C.A.No.84/2016 on the file of the First Additional Sessions Court, Kozhikode. 4. The revision petitioner in all these cases is the sole accused in the above cases, who suffered conviction and sentence at the hands of the trial court as well as the appellate court. The 1st respondent in all these matters is the original complainant and the 2nd respondent is State of Kerala. 5. Heard the learned counsel for the revision petitioner as well as the learned counsel for the first respondent. The learned Public Prosecutor representing the second respondent also was heard. 6. I would like to refer the parties in these revision petitions as `revision petitioner'(accused) and the 'first respondent' (complainant), hereafter for convenience. 7. Short facts of the case: The complainant, a partnership firm `M/s.Valiery Vaidyasala', lodged separate complaints under Section 142 of the Negotiable Instruments Act (`N.I Act' for short) through its Managing Director Dr. K.P.Saji Kumar when Ext.P3 cheque dated 24.11.2011, Ext.P10 cheque dated 30.11.2011, Ext.P....
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....ommon judgment, the appellate court found that in the notices sent in these cases, it was not specified that the notices were issued on behalf of the firm. He pointed out that, as per Section 138(b) of the N.I Act, the cause of action to initiate prosecution alleging commission of offence punishable under Section 138 of the N.I.Act would arise only when the payee or the holder in due course of the cheque, as the case may be, shall make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and on failure to repay the amount within one month from the date of receipt of the said demand notice. Therefore, when notice is issued by a person other than a payee or the holder in due course of the cheque, it cannot be held that there is a proper legal notice within mandate under Section 138(b) of the N.I Act. Accordingly, it is submitted that the prosecution itself is non-est. In this connection, in order to substantiate this contention, the learned counsel for the revision petitioner placed decision of this Court report....
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....n contract by one partner in the course of business with authority to act will be held to be binding on the firm. But when such a claim is made on the strength of a promissory note or a bill of exchange, court will have to be satisfied that the negotiable instrument discloses the liability of the firm clearly." Based on this decision, it is fervently contended by the learned counsel for the revision petitioner that the liability of the firm should have been demanded in the notice and Dr. K.P.Saji Kumar in his individual capacity has no locus standi to make such a demand, since he is neither a 'payee' nor a 'holder in due course' of the cheque. 15. Refuting this contention, the learned counsel for the 1st respondent submitted that the purpose intended by notice is nothing but an intimation to the drawer to pay the cheque amount and there is no specific form of notice provided at all. In this connection, he has placed a decision of this Court reported in [2019 (3) KHC 105 : 2019 (2) KLT 895 : 2019 (3) KLJ 58], B.Surendra Das v. State of Kerala & anr. In the said decision, this Court held that there is no statutory mandate that notice shall narrate the nature of the....
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.... It is urged by the learned counsel further that Dr. K.P.Saji Kumar in his individual capacity is not either the 'payee' or a 'holder in due course'. He had read out the definition of `payee' and `holder in due course' as en-grafted under Sections 7 and 9 of the N.I Act. In fact, Section 7 of the N.I.Act defines who is `payee'; Section 8 defines who is `holder' and Section 9 defines who is `holder in due course', which are as shown below: "Payee : The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the "payee". "Holder : The "holder" of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction." "Holder in due course :-- "Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order,....
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.... from that, the learned counsel for the 1st respondent placed decision reported in [2000 KHC 319 : 2000 (2) KLT 59 : 2000 (1) KLJ 561 : ILR 2000 (2) Ker. 650 : 2000 CriLJ 2155], S.G.Pandalai v. Jacob C. Alexander and Another and [2006 KHC 1654 : 2006 (3) KLJ 692 : 2006 (4) KLT 800], P.R.Lekha v. K.N. Manickan & anr. to contend that the description of the name of the accused in the notice is of no consequence. 25. Coming back to the discussion, plainly reading the definition of 'holder in due course', it is crystal clear that holder in due course means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque, if payable to bearer. Here, there is no dispute that Dr. K.P.Saji Kumar, who issued the notice, is the Managing Director of the firm and he had described his address in the notice itself as M/s.Valiery Vaidyasala, capable of knowing that the demand was made by Dr. K.P.Saji Kumar, M/s.Valiery Vaidyasala. If so, Dr.K.P.Saji Kumar, being the Managing Director, has right to possess the cheques for and on behalf of the firm. To put it differently, suppose, on presentation of the cheques by Dr. K.P.Saji Kumar, being the bearer of....