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M/S.Sabarika Sarees vs P.K. Mohammed on 11 March, 2009

Kerala High Court
M/S.Sabarika Sarees vs P.K. Mohammed on 11 March, 2009




CRL.A.No. 888 of 2001()

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.P.V.KUNHIKRISHNAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.GIRI

 Dated :11/03/2009

 O R D E R
                       V.GIRI, J.
                 CRL.A.No.888 of 2001
        Dated this the 11th day of March, 2009.


The complainant in S.T.No.146/98 on the file of

the Chief Judicial Magistrate, Kozhikode, is the

appellant herein.

2. The firm represented by its Power of

Attorney, filed a complaint alleging that the accused had

issued Ext.P1 cheque for an amount of Rs.30,676/-; that

the cheque, on presentation, was dishonoured stating

“exceeds arrangement”. A notice was sent, which was

not replied to. Thereafter the complaint was filed.

3. The court below found that the issuance of

the cheque and the service of notice, as contemplated by

the statute have all been proved by the complainant,

but nevertheless proceeded to acquit the accused on the

ground that PW.1, who is stated to be Power of

Attorney, has not proved his authority to represent the

complainant or the lodge the complaint on the date on

which it was lodged. On this basis, the accused was

CRL.A.No.888 of 2001

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acquitted under Section 255(1) of the Code of Criminal

Procedure. Hence this appeal by the complainant.

4. Notice was sent to the accused on this

appeal. After sending notice for several times, service of

notice was ordered by affixture. There was no

appearance on behalf of the accused, though service of

notice has been completed.

5. I heard learned counsel for the appellant.

6. The fact that the cheque was signed and

issued by the accused and that the cheque was returned

because of insufficiency of funds in the account and that

a demand notice had been issued and served on the

accused are matters found in favour of the complainant

by the court below. Paragraph 7 of the judgment reads

as follows:

“Exhibit P1 cheque contains even the

business seal of the accused. There is no specific

case for the accused during evidence stage that

either his signature was forged or that the

contents in the cheque were fraudulently filled up.

The mutually contradictory stand taken by the

accused during the evidence stage and in the 313

CRL.A.No.888 of 2001

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statement is also eloquent of the hollowness of his

case. The accused has not been able to give

satisfactory evidence regarding the possession of

his signed cheque with the complainant.

Excepting the bald suggestion that the account

books relating to the transaction are not produced,

which in the nature of the case I feel unnecessary,

accused has not adduced satisfactory evidence to

rebut the statutory presumption regarding

consideration. The complaint regarding the non-

receipt of the notice does not also appear to be

convincing so long as the accused has no case that

the address shown in exhibit P4 notice is incorrect.

With all these the ultimate fate of the complaint

will mainly depend upon the authority of PW1 to

represent the firm and give evidence.”

7. Thereafter, the court below proceeded to

hold that Ext.P8 Power of Attorney, which is seen to

have been executed on 7.10.1994, cannot confer power

on PW.1 in such a manner as to enable him to file a

complaint in 1998. The court below did not accept the

Notarised Photostat copy of the Power of Attorney,

which was produced along with the complaint. The said

Power of Attorney is seen to have been executed by the

partners of the firm on 7.10.1994. The court below has

CRL.A.No.888 of 2001

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noted that except for the production of a notarised

Photostat copy, no attempt was made by the

complainant to show that the original of the same was

irretrievably lost or that such a Power of Attorney had

actually been executed. It is the correctness of this

view, which has been challenged in this appeal.

8. I am inclined to agree with the submissions

made by the learned counsel for the appellant. Firstly,

the notarised copy of the Power of Attorney was

produced along with the complaint. It is mentioned as

item No.5 in the list of documents. PW.1 is the Power of

Attorney examined on behalf of the complainant. There

is nothing to show that PW1 lacks competence to

represent the complainant. His evidence was tendered

on 10.12.1999. The Notarized copy of the Power of

Attorney, produced along with the complaint, was not

marked and no reason is readily discernible from the

records as regards this. But I find it noteworthy to

mention that Ext.P8 Power of Attorney, which was later

CRL.A.No.888 of 2001

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tendered before the court, makes reference to the 1994

Power of Attorney and asserts adequate power with

PW.1. There was no tenable reason not to accept the

version of PW.1 that the original of the said Power of

Attorney, Notarized copy of which was produced along

with the complaint was actually lost. If that be so, the

existence of adequate power with PW.1 to have

represented the complainant firm when the complaint

was lodged in 1991, should not have been disputed or

doubted by the court below.

9. All the others aspects, which would go to

show that the accused is guilty, have been discussed and

found in favour of the complainant. In these

circumstances, I am of the view that the order of

acquittal is unsustainable.

Accordingly, the appeal is allowed. The order

of acquittal is set aside. The accused is convicted for

the offence under Section 138 of the Act. He is

sentenced to pay a fine of Rs.32,000/-, in default of

CRL.A.No.888 of 2001

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which he shall undergo simple imprisonment for a

period of three months. The accused is granted 4

months’ time to pay the fine. The court below shall

proceed to take appropriate steps to see that the

sentence is executed. As and when the fine amount is

deposited, an amount of Rs.31,000/- (Rupees Thirty One

thousand only) shall be paid out of the same to the

complainant as compensation under Section 357 of the

Code of Criminal Procedure.



//true copy//

P.S. to Judge

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