IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 CRL.A.No. 72 of 2000 ---------------------- CC.35/1994 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... APPELLANT/COMPLAINANT: ------------------------------ P.K. ABDUL RAHIM, SECRETARY, IDEAL PUBLICATION TRUST, SILVER HILLS, CALICUT. BY ADV. SRI.S.VIJAYAKUMAR RESPONDENTS/ACCUSED & STATE: --------------------------------------- 1. PANGHAT ABDUL RAZAK, S/O.MOIDEENKOYA, THARAMMAL HOUSE, POLLUNNE, CALICUT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.T.G.RAJENDRAN. R2 BY PUBLIC PROSECUTOR, SRI. C.M. KAMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2008, ALONG WITH CRA NO. 81/2000 & CRA NO. 82/2000, THE COURT ON ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. Nos. 72, 81 & 82 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2008 JUDGMENT The common appellant in these three appeals had prosecuted the common respondent No.1 herein before the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act. Joint trial was held by the learned Magistrate in the three cases and by a common order the learned Magistrate acquitted respondent No.1/accused, holding that the complainant had failed to prove that Exts.P1, P8 and P12 cheques were issued in discharge of a legally enforceable debt or liability. It was further held that the appellant was not competent to prosecute the accused in as much as there was nothing on record to show that he was duly authorised to represent the payee of the three cheques. Since the issue raised in these three appeals is common, they are being disposed of by this common judgment. 2. The case of the complainant in the three complaints before the trial court was that he was the Secretary of the Ideal Publication Trust, and in that capacity he was duly authorised to conduct the Crl.A. Nos. 72, 81 & 82/2000 -:2:- cases. According to the complainant, the accused owed certain amounts to Madhyamam daily while he was working as a Commission agent. The accused had issued Exts.P1, P8 and P12 cheques for Rs.3,000/-, Rs.13,000/- and Rs.13,000/- respectively towards discharge of the said debt. The above cheques were dated June 30, August 30 and October 30, 1993 respectively. When these cheques were presented for encashment, they were dishonoured due to insufficiency of funds in the account of the accused. Though statutory demand notices were issued by the complainant, the accused did not discharge the liability. On the contrary, he sent a reply containing ‘false and untenable contentions’. Hence the three complaints. 3. Before the trial court, the complainant was examined as PW1. His witness was examined as PW2. Exts.P1 to P15 were marked on his side. DW1 to DW5 were also examined on the side of the defence and Exts.D1 to D22 were marked in the case. 4. The defence set up by the accused was that he had been working as a non-journalist in Madhyamam daily from January 1987 onwards on a monthly salary of Rs.1,550/-. But, in view of the Crl.A. Nos. 72, 81 & 82/2000 -:3:- financial stringency of the institution, he was being paid only Rs.500/- per month apart from commission charges payable for canvassing advertisements for the newspaper. Though he was a member of 'Indian Jamayate Islami' from 1987 onwards, he had resigned from that organisation in 1992. This infuriated the management. According to the accused, he and some other employees were therefore denied salary. I do not propose to deal with the various other contentions raised by the accused in his defence. Suffice it to say that the accused denied the allegation of the complainant that he owed money to the Madhyamam daily. According to him, in December 1992 he had handed over some post dated cheques amounting to Rs.29,000/- pursuant to a mediation held at the behest of M/s.Ummer and Basheer. These cheques were handed over as security in the mediation. It was agreed by the management that the arrears of salary payable to him would be disbursed by the management by March 1993 and the cheques would be returned to him at that time. The accused contended that Exts.P1, P8 and P12 cheques were three of the 10 blank signed cheques handed over by him to the management pursuant to the mediation referred to above. Crl.A. Nos. 72, 81 & 82/2000 -:4:- He further alleged that the amounts in Exts.P8 and P12 were in fact altered by the management. Yet again, I do not propose to deal with either that contention or any other, since, in my view, these appeals can be decided on yet another crucial point. 5. The learned Magistrate had raised the following points for consideration: i. Whether the complainant is competent to file the complaint? ii. Whether the accused issued Exts.P1, P8 and P12 cheques to Madhyamam in discharge of legally enforceable liability? iii. Whether all the formalities to attract Section 138 of N.I. Act are complied? 6. While considering the first point, namely whether the complainant was competent to file the complaint, the learned Magistrate noticed that the three cheques were admittedly issued in favour of Madhyamam daily. As mentioned earlier, the complainant described himself as the Secretary of Ideal Publication Trust. But no document was produced by the complainant to show that he had anything to do with “Madhyamam Daily”, the payee of the three cheques. Though he had contended that he was duly authorised by the management to institute the three cases, no document was Crl.A. Nos. 72, 81 & 82/2000 -:5:- produced evidencing such authorisation. Further, there was nothing on record to show that the Madhyamam Daily was owned and run by the Ideal Publication Trust. Therefore, the learned Magistrate took the view that the three complaints as instituted by the Secretary of Ideal Publication Trust could not be maintained. I have taken through the relevant documents produced by the parties. Having gone through those documents and having considered the deposition of the complainant and the witnesses examined on either side, I do not find any reason to interfere with the order of acquittal passed by the court below. In my view, the learned Magistrate was justified in holding that the complainant is not competent to institute the three complaints. For the reasons stated above, I am satisfied that order of acquittal passed by the learned Magistrate in the three cases need not be disturbed. The appeals fail and they are accordingly dismissed. (A.K.BASHEER, JUDGE) ttb Crl.A. Nos. 72, 81 & 82/2000 -:6:-