IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 CRL.A.No. 1998 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.390/2003 Dated 26/09/2003 CC.349/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... APPELLANT(S): COMPLAINANT ------------------------- B.S.ANIL KUMAR S/O. BHASKARAN PIALLAI, KANJAVIL VEEDU, THEKKEMURI, KANJAVELI P.O., KOLLAM. BY ADVS.MR.JOHN BRITTO MR.C.A.RAJEEV RESPONDENT(S): ACCUSED 1-2 & STATE ---------------------------------- 1. M/S PRECIOUS CARRYING CORPORATION, MANAGING DIRECTOR, 37/16, K.S.GARDEN, 4TH CROSS, LAL BAG ROAD, BANGALORE 560 027. 2. J.P.ARYA, M.D., DO. 3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY ADVS. MR.T.A.SHAJI, MR.P.K.CHANDRA SEKHARA PILLAI . R3 BY SR.PUBILC PROSECUTOR MR.PUZHAKKARA MUHAMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1998 OF 2003 ------------------------------ Dated this the 28th day of July, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed in C.C.No.349/1999 of the JFCM-II, Kollam. It is the case of the complainant that the first accused company by name M/s. Precious Carrying Corporation Ltd had borrowed a sum of Rs. Two lakhs and towards the discharge of the same had issued a cheque which when presented for encashment had been returned. The case of the accused 1 and 2 appears to be that though the 3rd accused was their Manager, he was not authorised to receive any loan on behalf of the company and that he had cheated the company and misappropriated the funds of the company and therefore, there is no liability for the company in the event of any cheque being issued by him. So, the crux of the matter depends upon the following matters. (1) What was the authority of the third accused in borrowing the amount (2) Whether the issuance of cheque is tainted with illegality. If the third accused was a person competent to operate the account of the company and also borrow the amount, then a person who had advanced money cannot be CRL.A.NO.1998/03 2 defeated because of the inter se dispute between the company and its employees. It is for them to work it out against that person. Suppose the company has not authorised this person to take loan for the purpose of the business and it is vested with some other person then it is a cheque issued by an incompetent person and therefore it may not have any binding effect on the company. These are all matters which requires consideration at the hands of the court and I find that unfortunately the company has not produced any documents regarding its management, authority and power given to its Manager. I feel an opportunity can be given and therefore, the order of acquittal is set aside and the matter is remitted back to the court below for fresh consideration with an opportunity to both sides to adduce further evidence in the form of oral and documentary evidence in support of their respective contentions. The parties are directed to appear before the court below on 15.9.2009. M.N. KRISHNAN, JUDGE cl