IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 888 of 2001()
1. M/S.SABARIKA SAREES
... Petitioner
Vs
1. P.K. MOHAMMED
... 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.
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CRL.A.No.888 of 2001
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Dated this the 11th day of March, 2009.
JUDGMENT
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
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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
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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
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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
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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
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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.
Sd/-
(V.GIRI)
JUDGE
sk/
//true copy//
P.S. to Judge