Pradip Mohanty, J.
1. This Criminal Revision is directed against he order dated 28.06.2005 passed by the Ad hoc Addl. Sessions Judge, FTC No. 1, Cuttack in Criminal Appeal No. 72 of 2003 confirming the judgment dated 12.11.2003 passed by the learned J.M.F.C., Cuttack in I.C.C. Case No.113 of 2002/Trial No.503 of 2003.
2. The case of the prosecution is that the accused-petitioner in course of his business transaction purchased flour, Maida, etc. from the complainant and issued three cheques for a total amount of Rs. 3,98,500/-. The complainant presented the said cheques for clearance with his banker, but the same were dishonoured due to insufficient fund in the account of the accused-petitioner. On being intimated regarding the dishonour of cheques, the. complainant sent demand notice to the accused-petitioner asking for payment. In spite of notice, the accused-petitioner failed to make any payment, for which the above noted complaint was filed.
3. The plea of the accused-petitioner was complete denial of the allegation. He specifically pleaded that he had not issued any cheque. He had lost his cheque book which he had intimated to his banker vide affidavit and had closed his account.
4. In order to prove its case, prosecution examined as many as three witnesses and exhibited thirteen documents. The defence examined one witness and exhibited one document. The learned J.M.F.C, who tried the case, by his judgment dated 12.11.2003 convicted the petitioner under Section 138 of the N.I. Act and sentenced him to undergo S.I. for seven months and pay a fine of Rs.4,000/- in default to undergo S.I. for another one month which shall run consecutively. He further directed the petitioner to pay a sum of Rs.3,98,500/- to the complainant as compensation. Against that order, the petitioner preferred Criminal Appeal No. 72 of 2003 before the learned Addl. Sessions Judge, FTC No. 1, Cuttack, who after hearing the parties by judgment dated 28.06.2005 confirmed the order of conviction and sentence passed by the learned J.M.F.C. and dismissed the appeal.
5. Mr. Rath, learned Counsel for the petitioner submitted that M/s. K.R. Roller Flour Mills Pvt. Ltd. being a registered partnership firm had not authorized the opposite party to initiate legal proceeding. According to him, no document to that effect was exhibited in the Court below. Therefore, the complaint petition should have been dismissed. He further submitted that the partnership firm must be represented by its Managing Partner or Partner, as the case may be, and since the partnership firm itself had not laid the complaint, the trial Court travelled beyond its jurisdiction in entertaining the complaint. His further submission was that in view of the specific case of the petitioner that he had not received any notice of demand and in absence of any document to show that the petitioner received the notice, the Courts below committed gross illegality and impropriety in convicting the petitioner. Lastly, he submitted that the complaint had not been filed in time and notice was not issued within the stipulated period, as provided under Section 138 of the N.I. Act. In support of his contentions, he placed reliance on the decisions in Smt. Payyati Savltrl Devi v. Malireddy Oamayanthamma and Anr. 1997 (4) Crimes 325; S.P. Sampathy and etc. v. Smt. Manju Gupta and Anr. etc. : 2002 Crl.L.J. 2621; Manlmekalai v. Chapaldas Kalyanjl Sanghvi 1995 Cri.LJ. 1102 and Nlkhil Merchant v. CBI and Anr. AIR 2009 SC 428.
6. Learned Counsel for the opposite party submitted that the complaint was filed by the complainant through its Legal Assistant. During trial, the Legal Assistant admitted such fact in his evidence while being examined as P.W.1 and proved the authorization letter issued in his favour, which was marked as Ext. 10. There was no lacuna in filing the complaint petition and prosecuting the same by the authorized Legal Assistant of the partnership firm. He further submitted that there was due compliance of Section 142 of the N.I. Act, as the notice was served and the complaint filed within the stipulated time. Hence, there is no infirmity or illegality committed by the Courts below in convicting the accused-petitioner, which is based on proper appreciation of evidence. To support his contentions, learned Counsel for the opposite party relied upon the decisions in K. Bhaskaran v. Sankaran Vaidhyan Balan 2000 (I) OLR 1; V. Rajakumari v. P. Subbarama Naidu and Anr. : AIR 2005 SC 109; and M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. : AIR 2002 SC 182.
7. Perused the L.C.R., the decisions cited by the parties and provisions of law. In the instant case, the complainant being a registered firm in the name and style M/s. K.K. Rollers Flour Mills Pvt. Ltd. filed the complaint through its Legal Assistant Bhaba Dulal Bose. The said Legal Assistant has been examined as P.W.1 and the authorization letter has been marked as Ext. 10. The cheques were issued to the complainant by the accused-petitioner as proprietor of Radhagovinda Traders at Malgodown Road Cuttack. The complainant in compliance of the requirements of law, as enumerated under Section 138 N.I. Act, sent Advocate's notice dated 25.04.2002 by registered post with A.D. on 26.04.2002 demanding the payment of the dishonoured cheques amount within 15 days of its receipt. As the accused-petitioner did not pay the amount within the stipulated period, the complainant initiated the proceeding. The complainant case was filed on 27.05.2002.
8. The payee of the cheque M/s. K.K. Rollers Flour Mills Pvt. Ltd had authorized its Legal Assistant who produced the authorization marked as Ext. 10. It is, therefore, evident that the complaint is in the name and on behalf of the payee. It has been held in Nikhil Merchant's case (supra) that two requirements are to be fulfilled for compliance of Section 142(a) of N.I. Act. Those are (i) The complaint should be made in writing, and (ii) the complainant should be the payee. Keeping in mind the aforesaid ratio, this Court examined the records. In the instant case, the payee, i.e., M/s. K.K. Rollers Flour Mills Pvt. Ltd is the complainant. Once the complaint is in the name of the payee and is in writing, it has to be held that the requirements of Section 142 of the N.I. Act are fulfilled. It is, however, found that the petitioner preferred appeal before the Court of Session in his individual capacity and not as the proprietor of the firm and the same was dismissed. Against that order, the petitioner has preferred this revision again in his individual capacity. He has also not impleaded M/s. K.K. Rollers Flour Mills Pvt. Ltd as the opposite party but has impleaded Bhaba Dulal Bose as the opposite party in his individual capacity.
9. Be that as it may, since the complaint was in order and the complainant was able to prove its case, the Courts below have rightly passed the impugned judgments of conviction and there is no reason to interfere with the same. However, on the question of sentence by taking a liberal view this Court, in exercise of inherent power, modifies the same and sentences the petitioner to pay a fine of Rs.5000/- in default to undergo S.I. for two months. Besides, the petitioner shall pay the compensation amount as directed by the Courts below within two months, failing which the complainant M/s. K.K. Rollers Flour Mills Pvt. Ltd is at liberty to realize the same as if fine of the said amount was imposed on the petitioner by the Court.
10. The CRLREV is dismissed subject to modification of sentence as indicated above.