IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 CRL.A.No.1495 of 2004 (C) ------------------------------- AGAINST THE ORDER IN CRL.L.P.494/2004 Dated 09/08/2004 CC.1029/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... APPELLANT: COMPLAINANT -------------------------------- M/S.MANIKANDAN AUTOMOBILES, XXXIX/5335, ALAPPAT EXTENSION ROAD, KOCHI-16 REPRESENTED BY POWER OF ATTORNEY HOLDER MR.P.A.BENEDICT. BY ADV. SRI.PAULSON C.VARGHESE RESPONDENTS: ACCUSED & STATE ---------------------------------------- 1. MR.KRISHNA KUMAR, NAYANAN (KUTTIKAD), NEAR NORTH FORT GATE, MAIN ROAD, THRIPUNITHURA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.K.P.DANDAPANI PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1495 of 2004 ------------------------------------------------ Dated this the 12th day of February, 2008 JUDGMENT This appeal is filed by the complainant in C.C.1029/98 on the file of the Additional Chief Judicial Magistrate's Court, Ernakulam challenging the acquittal of the first respondent of an offence under Section 138 of the N.I. Act under Section 255(1) of the Cr.P.C. 2. The complaint was filed alleging inter alia that the first respondent owed an amount of Rs.8,500/- to the appellant and in discharge of the said amount Ext.P2 cheque was issued that the said cheque was dishonoured on presentation by the drawee bank for reason of “insufficiency of funds” in the account of the first respondent to satisfy the said cheque vide Ext.P3 memo; that Ext.P3 along with Ext.P2 cheque was forwarded to the appellant by his bankers under Ext.P4 debit advice; that thereupon the original of Ext.P5 notice was Crl. Appeal No.1495 of 2004 -2- issued to the first respondent intimating him of the dishonour of Ext.P2 cheque and demanding payment of the amount covered by the cheque under Ext.P5(a) postal registration receipt and the first respondent who received the said notice has issued Ext.P7 reply and has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and thus, he has committed an offence punishable under Section 138 of the N.I. Act. 3. On appearance of the first respondent in the court below pursuant to issuance of summons, he was served with copies of all relevant records in the case and was questioned by the Additional Chief Judicial Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, the first respondent pleaded not guilty and consequently, a trial of the case was conducted by the court below. On the side of the appellant PW1 is examined and Exts.P1 to Crl. Appeal No.1495 of 2004 -3- P7 were marked. On the appellant closing his evidence the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he received the notice but he has issued a reply and that he is not aware as to whether the amounts due thereunder are paid or not. 4. On the defence side DWs.1 to 3 were examined and Ext.D1 is marked. Ext.D1 shows that the S.B account No.7820 in which Ext.P2 cheque was issued is an account held in the name of the Kshethra Kshema Samithy, Pallipurathukavu, Tripunithura represented by its President and Secretary and that was opened as early as on 07/11/87. Ext.P2 cheque is issued on 15/02/98. It is common case that Ext.P2 cheque was being issued to the appellant as against their bill for repair of a vehicle which though belonged to the first respondent was being plied for the Kshethra Crl. Appeal No.1495 of 2004 -4- Kshema Samithi of Pallipurathukavu in the name of whom is Ext.D1 account opened. The first respondent as DW1 has deposed that he has signed in Ext.P2 cheque as at that time he was the authorised signatory of the Cochin Devaswom Board to sign cheques in the account maintained by the Kshethra Kshema Samithi. DW2 is the branch Manager of Tripunithura branch of Vijaya Bank on which is S.B. Account No.7820 in the name of the Kshethra Kshema Samithi maintained. His evidence has proved Ext.D1 which shows that the account is maintained by the Kshethra Kshema Samithi and not by the first respondent. DW3 the Devaswom Officer of Tripunithura Devaswom office under the Cochin Devaswom Board has given evidence that the bank account in the name of the Kshethra Kshema Samithi is operated by a nominee selected and authorised by the executive committee; that the authorisation of the nominee will be communicated to the Devaswom office and the Devaswom officer will Crl. Appeal No.1495 of 2004 -5- give authorisation for the operation of the account in the name of the Samithi by the person so authorised and that the assets and liabilities of one Kshethra Kshema Samithi will be taken over by the successor Samithi; and that in the case of a cheque issued by the Samithi the liability is for the Samithi which is then in existence and which is operating the account then. The evidence so adduced on the side of the first respondent goes to show that the account is one that is maintained by the Kshethra Kshema Samithi and not by the first respondent though he happened to sign in the cheque as the authorised signatory as he was nominated for the purpose by the Kshethra Kshema Samithi and accordingly, the Devaswom officer has authorised him to operate the account of the Samithi and it was not that the first respondent was issuing Ext.P2 cheque drawn on an account maintained by him with the drawee bank. Crl. Appeal No.1495 of 2004 -6- 5. It is contended before me by the learned counsel for the appellant that the vehicle that was repaired in relation to which was the amount due to the appellant and for payment of which was Ext.P1 issued was a car belonging to the first respondent. However, the vehicle was being plied by the Kshethra Kshema Samithi and it was the duty of the Samithi to have the vehicle repaired when it was taken for the purpose of the Samithi as it is nobody's case that the vehicle met with an accident and suffered damage while it was being driven by the first respondent. In the circumstances, remedy if at all for the appellant consequent on dishonour of cheque was to proceed against the Kshethra Kshema Samithi and the signatory of the cheque or his successor who is authorised to sign on behalf of the Samithi as authorised signatory and not to proceed against the signatory of the cheque for offence under Section 138 of the N.I. Act, if at all it is to be argued that an offence Crl. Appeal No.1495 of 2004 -7- under Section 138 of the N.I Act will lie. The complaint filed against the first respondent who is the signatory complaining of commission by him of an offence punishable under Section 138 of the N.I. Act when the account is one maintained in the name of the Kshethra Kshema Samithi of which he happened to be the authorised signatory at the time of issuance of Ext.P2 cheque is not maintainable as rightly found by the court below. This appeal, in the circumstances, is devoid of merit. 6. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-