IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRL.A.No. 1487 of 2003(C) -------------------------------------- CC.NO.1369/1998 OF JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR. .................... APPELLANT/ COMPLAINANT: ------------------------------------------ M.A.FRANCIS, MANAGER, KAISONS RUBBER INDUSTRIES, MATTOOR, KALADY. BY ADVS. MR.P.VIJAYA BHANU, MR.TONY MATHEW. RESPONDENTS/ ACCUSED AND STATE: --------------------------------------------------------- 1. PAILY, THULAMATTATHIL, PROPRIETOR, SIMPLE SALE AGENCIES, VELLOORKUNNAM, MUVATTUPUZHA- 686 673 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.S.K.AJAYAKUMAR, R2 BY PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1487 OF 2003 ------------------------------ Dated this the 7th day of August, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the J.F.C.M, Perumbavoor in C.C.No.1369/1998. It was a prosecution under Section 138 of the N.I.Act which has ended in acquittal. The complainant herein is the Manager of Kyson Rubber Industries and he had filed a private complaint for prosecuting the case under Section 138 of the N.I.Act. It is his case that a cheque has been issued towards the discharge of the liability which when presented for encashment returned with the endorsement of insufficiency of funds. 2. The defence appears to be that there was some transaction between the complainant and the accused and at that point of time, a blank cheque was given as security which had been misused by the complainant/Manager to file a case of this nature. In the trial court, PWs 1 and 2 were examined and Exts.P1 to P10(a) were marked. 3. The points that arise for determination in the appeal are: (1) Whether the court below was right in acquitting the 2 CRL.A.NO.1487/03 accused (2) Whether there are sufficient materials to hold the accused guilty under Section 138 of the N.I.Act and (3) In case of guilt, what will be the proper sentence? 4. Heard the learned counsel for the appellant in detail and perused the records. The learned counsel had attacked the findings of the court below on the grounds that (1) in spite of the best documents available, the court below had not relied upon on them (2) that the complainant/Manger has succeeded in proving that he is competent to represent the firm and (3) that the transaction is not properly proved. 5. A perusal of the complaint would reveal that the complainant has described himself as the Manager of Kyson Rubber Industries . The very averment in the complaint would show that the accused had purchased thread rubber from Kyson Rubber Industries and towards the amount due for the said purpose had issued the cheque. So, it is very clear on reading the complainant that the complaint is filed by the Manager of the firm. It is not filed in his individual capacity. When it is so, the next point to be considered is whether he is competent to represent the firm. The learned counsel had 3 CRL.A.NO.1487/03 produced Ext.P1 partnership deed. In Ext.P1 partnership deed, clause 17 shows that it is the Managing Partner who is entitled to represent the firm in litigations etc. Ext.P2 is the power of attorney executed by both the partners of the firm in favour of one Francis, who is the Manager, wherein it is specifically stated that he is competent to represent the firm in all the matters whether civil or criminal. The power of attorney bears the date 30.4.1998 and there is some suspicion about the correctness of the date . Ext.P7 is another letter of authorization which again shows that the said Francis is duly authorized to prosecute even this proceeding. It is a letter dated 21.5.1998. It is the well settled principle now that when an amount is due to a company or a firm and suppose a cheque is issued in favour of that company or firm, the complainant can certainly prosecute the matter even if a person who supports that did not have a proper power of attorney or authorisation. 6. In the decision reported in M/s. M.M.T.C Ltd.v. M/s. Medchl Chemicals and Pharma (P) Ltd., (AIR 2002 SC 182) it has been held that “the only eligibility criterion 4 CRL.A.NO.1487/03 prescribed by Section 142 is that the complaint under Section 138 must be by the payee or the holder in due course of said cheque. This criterion is satisfied as the complaint is in the name and on behalf of the appellant company in that particular case, the court further held that even prosecuting that aspect the company can at any stage rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. 7. So far as this case is concerned, Exts.P2, P7 and the evidence of PW2 convincingly establish that the Manager of the firm was authorised to represent the firm in civil and criminal matters and so even if there is any suspicion regarding the power of attorney on initiation of the proceedings, certainly it is cured by the subsequent documents and therefore, on that ground, the court below should not have rejected the complaint. This point found in favour of the complainant. 8. Point No.2. This point deals with the facts. It is true that in the complaint it is averred that an amount of Rs.60,285/= is due for the purchase of rubber threads on 5 CRL.A.NO.1487/03 14.5.1998. The court below found that there is inconsistency between this statement and the materials available and therefore, non suited the complaint. The complainant has produced Ext.P8. They are two invoices. The said invoice would show that 702.5 kg at the rate of 45 amount to Rs.36,355/= purchased on 30.4.1998 by the firm of the accused and again on 7.5.1998 460.5 kg at the same rate amount to Rs.23,830.50 was purchased. Total amount comes to Rs.60,185. So Ext.P8 proves that the amount stated above as outstanding is due on 14.5.1998 on which date the cheque is said to be issued. The company has also produced other accounts to prove the same. Over and above this, PWs 1 and 2 had been examined. PW1 has spoken about the transaction and PW2 also has stated so. Just because there is small inconsistency between the averment in the complaint and the actual materials, one cannot jump to the conclusion that there is no amount due at all from the accused to the complainant firm. Men may lie but circumstances never will lie. The documents available convincingly establish the circumstances and the amount due. 6 CRL.A.NO.1487/03 9. Under such circumstances, it has to be stated that the cheque has issued towards the discharge of the liability. From other materials one can see that the other statutory requirements also had been complied with i.e., notice being sent in proper time etc and therefore, I find the accused guilty under Section 138 of the N.I.Act reversing the finding of acquittal passed by the learned Magistrate. 10. Now turning to the question of sentence. If the accused wants to wipe of the liability, I do not want to send him to the prison and therefore, I feel the sentence of imprisonment till the rising of the court and a compensation of Rs.61,185/= will be sufficient. 11. In the result, the criminal appeal is allowed and disposed of as follows: 1. The order of acquittal is set aside. 2. The accused is found guilty under Section 138 of the N.I.Act and is convicted there under and he is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of Rs.60,185/= to the complainant and in default to undergo S.I for a period of three months. The 7 CRL.A.NO.1487/03 accused shall appear before the court below on 27.10.2009 for receiving the sentence and making payment of the compensation failing which, the trial court shall execute the sentence. M.N. KRISHNAN, JUDGE cl