IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1487 of 2003()
1. M.A.FRANCIS, MANAGER, KAISONS RUBBER
... Petitioner
Vs
1. PAILY, THULAMATTATHIL, PROPRIETOR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.S.K.AJAYAKUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/08/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.1487 OF 2003
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Dated this the 7th day of August, 2009
JUDGMENT
This is an appeal preferred against the order of acquittal
passed by the J.F.C.M, Perumbavoor in C.C.No.1369/1998. It
was a prosecution under Section 138 of the N.I.Act which has
ended in acquittal. The complainant herein is the Manager of
Kyson Rubber Industries and he had filed a private complaint
for prosecuting the case under Section 138 of the N.I.Act. It is
his case that a cheque has been issued towards the discharge of
the liability which when presented for encashment returned
with the endorsement of insufficiency of funds.
2. The defence appears to be that there was some
transaction between the complainant and the accused and at
that point of time, a blank cheque was given as security
which had been misused by the complainant/Manager to file a
case of this nature. In the trial court, PWs 1 and 2 were
examined and Exts.P1 to P10(a) were marked.
3. The points that arise for determination in the appeal
are: (1) Whether the court below was right in acquitting the
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accused (2) Whether there are sufficient materials to hold
the accused guilty under Section 138 of the N.I.Act and (3) In
case of guilt, what will be the proper sentence?
4. Heard the learned counsel for the appellant in detail
and perused the records. The learned counsel had attacked
the findings of the court below on the grounds that (1) in spite
of the best documents available, the court below had not
relied upon on them (2) that the complainant/Manger has
succeeded in proving that he is competent to represent the
firm and (3) that the transaction is not properly proved.
5. A perusal of the complaint would reveal that the
complainant has described himself as the Manager of Kyson
Rubber Industries . The very averment in the complaint would
show that the accused had purchased thread rubber from
Kyson Rubber Industries and towards the amount due for the
said purpose had issued the cheque. So, it is very clear on
reading the complainant that the complaint is filed by the
Manager of the firm. It is not filed in his individual capacity.
When it is so, the next point to be considered is whether he is
competent to represent the firm. The learned counsel had
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produced Ext.P1 partnership deed. In Ext.P1 partnership deed,
clause 17 shows that it is the Managing Partner who is
entitled to represent the firm in litigations etc. Ext.P2 is the
power of attorney executed by both the partners of the firm in
favour of one Francis, who is the Manager, wherein it is
specifically stated that he is competent to represent the firm
in all the matters whether civil or criminal. The power of
attorney bears the date 30.4.1998 and there is some
suspicion about the correctness of the date . Ext.P7 is
another letter of authorization which again shows that the
said Francis is duly authorized to prosecute even this
proceeding. It is a letter dated 21.5.1998. It is the well
settled principle now that when an amount is due to a
company or a firm and suppose a cheque is issued in favour
of that company or firm, the complainant can certainly
prosecute the matter even if a person who supports that did
not have a proper power of attorney or authorisation.
6. In the decision reported in M/s. M.M.T.C Ltd.v. M/s.
Medchl Chemicals and Pharma (P) Ltd., (AIR 2002 SC
182) it has been held that “the only eligibility criterion
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prescribed by Section 142 is that the complaint under Section
138 must be by the payee or the holder in due course of said
cheque. This criterion is satisfied as the complaint is in the
name and on behalf of the appellant company in that particular
case, the court further held that even prosecuting that
aspect the company can at any stage rectify that defect. At
a subsequent stage the company can send a person who is
competent to represent the company.
7. So far as this case is concerned, Exts.P2, P7 and the
evidence of PW2 convincingly establish that the Manager of
the firm was authorised to represent the firm in civil and
criminal matters and so even if there is any suspicion
regarding the power of attorney on initiation of the
proceedings, certainly it is cured by the subsequent documents
and therefore, on that ground, the court below should not
have rejected the complaint. This point found in favour of the
complainant.
8. Point No.2. This point deals with the facts. It is true
that in the complaint it is averred that an amount of
Rs.60,285/= is due for the purchase of rubber threads on
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14.5.1998. The court below found that there is inconsistency
between this statement and the materials available and
therefore, non suited the complaint. The complainant has
produced Ext.P8. They are two invoices. The said invoice
would show that 702.5 kg at the rate of 45 amount to
Rs.36,355/= purchased on 30.4.1998 by the firm of the
accused and again on 7.5.1998 460.5 kg at the same rate
amount to Rs.23,830.50 was purchased. Total amount comes
to Rs.60,185. So Ext.P8 proves that the amount stated
above as outstanding is due on 14.5.1998 on which date the
cheque is said to be issued. The company has also produced
other accounts to prove the same. Over and above this, PWs
1 and 2 had been examined. PW1 has spoken about the
transaction and PW2 also has stated so. Just because there is
small inconsistency between the averment in the complaint and
the actual materials, one cannot jump to the conclusion that
there is no amount due at all from the accused to the
complainant firm. Men may lie but circumstances never will
lie. The documents available convincingly establish the
circumstances and the amount due.
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9. Under such circumstances, it has to be stated that the
cheque has issued towards the discharge of the liability. From
other materials one can see that the other statutory
requirements also had been complied with i.e., notice being
sent in proper time etc and therefore, I find the accused
guilty under Section 138 of the N.I.Act reversing the finding
of acquittal passed by the learned Magistrate.
10. Now turning to the question of sentence. If the
accused wants to wipe of the liability, I do not want to send
him to the prison and therefore, I feel the sentence of
imprisonment till the rising of the court and a compensation
of Rs.61,185/= will be sufficient.
11. In the result, the criminal appeal is allowed and
disposed of as follows:
1. The order of acquittal is set aside.
2. The accused is found guilty under Section 138 of the
N.I.Act and is convicted there under and he is sentenced to
undergo imprisonment till the rising of the court and to pay a
compensation of Rs.60,185/= to the complainant and in
default to undergo S.I for a period of three months. The
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accused shall appear before the court below on 27.10.2009
for receiving the sentence and making payment of the
compensation failing which, the trial court shall execute the
sentence.
M.N. KRISHNAN, JUDGE
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