IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.Rev.Pet.No. 76 of 2001() ----------------------------------------- CRA.NO.307/1999 of VTH ADDL.SESSIONS COURT, ERNAKULAM CC.NO.644/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER(S)/ APPELLANT/ACCUSED ------------------------------------------------------------------- T.A.M.ABDUL RAHMAN, PROPRIETOR, RIZWAN TRADERS, WEST CHELAKKULAM, VENGOLA.P.O., PERUMBAVOOR. BY ADV. SRI.V.K.VISWAMBHARAN SRI.ELDO K.MATHEW RESPONDENT(S)/ COMPLAINANT -------------------------------------------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, ERNAKULAM. 2. TANTRI TUBES PRIVATE LTD REP.BY ITS OFFICE SECRETARY, 37/2138,BHATT BUILDING T.D.ROAD, COCHIN-35. R1 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA R2 BY ADV. SRI.P.K.RAVISHANKAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2009, ALONG WITH CRRP NO.78 OF 2001 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRRP.NO.76/2001 APPENDIX PETITIONER'S ANNEXURES: ANNEX A1 COPY OF THE COMPLAINT FILED UNDER SECTIONS 138 AND 141 ANNEX A2 COPY OF THE RESOLUTION DATED 2/3/98. ANNEX A3 COPY OF THE APPELLATE JUDGME DATED 15TH DAY OF NOVEMBER, 2000. ANNEX A4 COPY OF THE TRIAL COURT COMMON JUDGMENT DATED 18/8/99 IN CC 648/98 & 645/98. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts K. HEMA, J. ```````````````````````````````````````````````````` Crl. R.P. Nos. 76 and 78 of 2001 ```````````````````````````````````````````````````` Dated this the 11th day of August, 2009 O R D E R The 2nd respondent/complainant in both these revisions filed two complaints against the petitioner(petitioners in both the revisions are the same) alleging that he had issued two cheques, one for `9,422/- dated 8.2.1996 and `10,425/- dated 10.2.1996 drawn on the Federal Bank, for discharge of a debt incurred in favour of one Nath Tubes Syndicate. The cheques, on presentation, were returned dishonoured due to insufficiency of funds in the account of the revision petitioner. 2. A lawyer notice was issued to the accused calling upon him to make the payment since such a cheque is dishonoured. Though the notices were received, no payment was made. Hence, two complaints were filed which were taken on file by the Magistrate court. After trial, both the cases were disposed of by a common judgment and, hence, these revisions are also disposed of by a common judgment. 3. The revision petitioner was convicted and sentenced by the Judicial First Class Magistrate in both the cases to undergo Crl.RP.76&78/01 : 2 : simple imprisonment for six months each and to pay a fine of `10,000/- each and in default, to undergo simple imprisonment for two months each. If the fine is realised, the same was ordered to be paid to the complainant as compensation. In appeal, learned Additional Sessions Judge modified the sentence and the petitioner was sentenced to undergo simple imprisonment for three months and to pay a sum of `10,000/- as compensation to the complainant. 4. The evidence in this case consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P9 and Ext.C1. After considering the rival contentions, both the courts below found that the prosecution has established that accused has committed offence under section 138 of the Negotiable Instruments Act. When these cases were taken up for hearing, there was no representation for the petitioner. Petitioner and counsel were absent and nobody argued the case on his behalf, though this case was posted for hearing on more than one occasion. 5. Heard learned counsel for the 2nd respondent. Perused the records. On going through the grounds raised in the Crl.RP.76&78/01 : 3 : revision memo, I find that the revision petitioner is challenging the locus standi of the complainant/2nd respondent to file the complaint. According to the revision petitioner, complaint is filed by Tantri Tubes Private Limited represented by the office secretary, whereas, as per the allegations in the complaint, the cheques were issued to Nath Tubes Syndicate. 6. Resolutions were produced and marked as Exts.P1 and P2, which would show that it is Tantri Tubes Private Limited, which has authorised the office secretary to sign on behalf of the said company all documents relating to the transaction of the company and to represent the company before the civil and criminal courts, etc. But, there is no authorisation from Nath Tubes Syndicate authorising the office secretary or the complainant to prosecute the case. Therefore, the contention is that the prosecution is bad in the absence of authorisation to prosecute the petitioner. 7. Learned counsel for the 2nd respondent submitted that it cannot be said in the peculiar facts of this case that the complaint is not maintainable. It is true that amounts were due to Crl.RP.76&78/01 : 4 : Nath Tubes Syndicate but the complainant (Tantri Tubes Private Limited) is the proprietor of Nath Tubes Syndicate. This fact is averred in the complaint itself. Tantri Tubes Private Limited, being the proprietor of Nath Tubes Syndicate, can maintain a complaint in the light of the dictum laid down in the decision reported in M/s.Shankar Finance & Investments Vs. State of Andhra Pradesh and Others [AIR 2009 SC 422]. It is held in the decision as follows:- “ Therefore where the payee is a proprietary concern, the complaint can be filed: (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the 'payee', (ii) The proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a Power of Attorney executed by the sole proprietor. It follows that in this case the complaint could have been validly filed by describing the complainant in any one of the following four methods: “Atmakuri Shankara Rao, sole proprietor of Crl.RP.76&78/01 : 5 : M/s.Shankar Finance & Investments”. Or “M/s.Shankar Finance & Investments a sole proprietary concern represented by its proprietor Atmakuri Shankara Rao”. Or “Atmakuri Shankara Rao, sole proprietor of M/s.Shankar Finance & Investments, represented by his Attorney Holder Thamak Satyanarayana”. Or “M/s.Shankar Finance & Investments, a proprietary concern of Atmakuri Shankara Rao, represented by his Attorney Holder Thamada Satyanarayana”. What would have been improper is for the Attorney holder Thamada Satyanarayana to file the complaint in his own name as if he was the complainant.” 8. It is also pointed out that, in the first ground itself, revision petitioner admitted that Tantri Tubes Private Limited is competent to maintain a prosecution for and on behalf of Nath Tubes Syndicate. It is also submitted that this question was not raised before either the trial court or the appellate court. It is raised only in the revision. The only contention raised in the trial was that the complaint is filed by Tantri Tubes Private Limited in respect of the cheque issued to Nath Tubes Syndicate and, Crl.RP.76&78/01 : 6 : hence, the complaint is not maintainable. That question was answered in favour of the complainant but now a new contention is taken up in revision which cannot be heard, it is submitted. 9. On going through the records and hearing the 1st respondent, I am satisfied of the argument raised by him that this point was not raised before either of the courts below. PW1 deposed that Ext.P2 authorised him to conduct the prosecution but in the cross examination nothing is brought out to show that the said version is not correct. In the light of the evidence adduced, I do not find that there is any merit in the contention raised. In the above circumstances, I do not find any ground to interfere in the concurrent findings of fact which disclose that the offence under section 138 of the N.I. Act is made out. The conviction and sentence are only sustainable and no interference is called for. The petitions are dismissed. Sd/- (K.HEMA, JUDGE) aks // True Copy // P.A. To Judge Crl.RP.76&78/01 : 7 : K. HEMA, J. ````````````````````````````````````````````` Crl. R.P. Nos. 76 and 78 of 2001 ````````````````````````````````````````````` O R D E R 11th day of August, 2009