IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1578 of 2003()
1. SUKANYA KURIES AND LOANS,
... Petitioner
Vs
1. C.J.VARGHESE S/O. JOSEPH,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.P.V.CHANDRA MOHAN
For Respondent :SRI.P.K.ABOOBACKER(EDATHALA)
The Hon'ble MR. Justice V.RAMKUMAR
Dated :29/09/2009
O R D E R
V. RAMKUMAR , J.
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Crl. Appeal No. 1578 of 2003
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Dated this the 29th day of September, 2009.
JUDGMENT
Heard both sides.
2. The appellant who was the complainant in S.T. No.
960 of 1999 on the file of the Chief Judicial Magistrate,
Thrissur, challenges the order of acquittal dated 29.03.2003
passed by the said Magistrate.
3. The case of the appellant in the private complaint
filed under Section 138 of the Negotiable Instruments Act,
1881 is as follows:-
Towards the amount due in a kuri transaction, the
accused issued Ext.P2 cheque dated 16.03.1999 drawn on his
account with the MO branch of the Catholic Syrian Bank,
Thrissur. The cheque when presented for collection through
the bank of the complainant, was dishonoured as evidenced
by Ext.P3 dishonour memo dated 19.03.1999. The
complainant issued Ext.P4 statutory notice dated 03.04.1999
as evidenced by Ext.P5 postal receipt. The notice was
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received by the accused on 08.04.1999 as evidenced by
Ext.P6 postal acknowledgment card. The accused did not pay
the amount within 15 days nor did he send any reply.
Thereupon, the complaint was filed on 19.05.1999.
4. The court below acquitted the accused mainly for the
following two grounds:-
1. The case of the accused during his examination under Section 313
Cr.P.C that Ext.P2 was issued as a blank cheque towards security
when the accused received the amount after kuri No.39 was
auctioned and for the default of 5 instalments committed by him,
he was admitted to kuri No.22 in which he had paid 21 instalments
and the complaint was filed by misusing the blank signed cheque
issued as security, appears to be probable.
2. PW1 who is a clerk in the complainant’s company, has not proved
that he was duly authorised to file the complaint. Ext.P1 is only
an unauthenticated xerox copy of the resolution by the Board of
Directors of the Company.
5. After hearing both sides, I do not think that both the
grounds mentioned by the court below can be sustained to
support the order of acquittal. The clerk of the complainant
was examined as PW1. It was elicited from his cross
examination that the sum of Rs.32,000/- mentioned in Ext.P2
cheque represents the 5 defaulted instalments made by the
accused towards kuri No.39 and it was the accused himself
Crl. Appeal No. 1578/2003 : 3 :
who brought and gave Ext.P2 cheque after writing the amount
and filling up the same. Even though PW1 does not say that a
defaulter will not be admitted to another kuri, the court below
without anything on record has concluded that if the accused
was treated as a defaulter, then he would not have been
admitted to kuri No.22 as evidenced by Ext.D1 pass book.
PW1 denied the suggestion put to him that it was to wipe off
the default made by the accused towards kuri No.39 that he
was allowed to join kuri No.22. If so, the court below could
not have assumed that the accused was allowed to join kuri
No. 22 for the purpose of wiping off the default in kuri No.39.
It is significant to note that the accused did not even care to
send a reply to Ext.P4 statutory notice. He did not also mount
the witness box to speak in support of the defence set up by
him. Under these circumstances, the court below was not
justified in holding that Ext.P2 cheque represents the
defaulted instalments made by the accused towards kuri
No.39.
Crl. Appeal No. 1578/2003 : 4 :
6. It is true that Ext.P1 is only an unauthenticated photocopy
of the resolution passed by the Board of Directors of the
complainant company authorising PW1 to file the complaint
and give evidence. But then, it was not even faintly suggested
to PW1 that he did not have the authority to file a complaint.
Even though it was PW1 who filed the complaint, the
complaint was filed on behalf of the Sukanya Kuries & Loans
which is the complainant. In MMTC Ltd. And another v.
Medical Chemicals and Pharma (P). Ltd. – 2002 (1) SCC
234, it was held that the complaint filed in the name and on
behalf of the company by its employee without the necessary
authorisation was nonetheless maintainable and want of
authorisation can be rectified even at a subsequent stage.
Here, when the accused had not disputed the locus standi of
PW1 to file a complaint and give evidence at any stage of the
proceedings, it was not open to him to challenge the locus
standi of PW1 to file a complaint on behalf of the company and
give evidence on behalf of the company.
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7. The result of the foregoing discussion is that the
appellant/complainant had successfully proved that the
accused had committed the offence punishable under Section
138 of the Negotiable Instruments Act. The 1st
respondent/accused is accordingly found guilty of the said
offence and is convicted thereunder. For the said conviction,
he is sentenced to pay a fine of Rs.35,000/- (Rupees thirty five
thousand only) by way of fine. On default to pay the fine, he
shall undergo simple imprisonment for two months. The 1st
respondent/accused is given one month’s time to deposit the
fine amount before the trial court. The amount as and when
realised shall be paid to the complainant by way of
compensation under Section 357(1)(a) Cr.P.C.
Dated this the 29th day of September, 2009.
V. RAMKUMAR, JUDGE.
rv
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