IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 CRL.A.No. 191 of 2002() ----------------------- CC.406/2001 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- VAVALLOT SOOPPY, S/O.MOIDU HAJI, AGED 36, KATAMERI AMSOM, ELAYADAM DESOM, VADAKARA TALUK. BY ADV.MR.P.A.AUGUSTINE(AREEKATTEL) RESPONDENT(S): ACCUSED AND STATE OF KERALA: --------------------------------------------------------------------------------- 1. MARAKKATTERI ABU, S/O. MOHAMMED, AGED 32, KUMMAMKODU AMSOM, DESOM, VADAKARA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON 25/03/2009 DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.191 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 25th March, 2009 JUDGMENT The complainant is the appellant. His complaint filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I.Act') after trial ended in a judgment of acquittal rendered in favour of the accused. Questioning the legality and correctness of that acquittal, he has preferred this appeal. 2. The case of the complainant in brief is thus: The accused borrowed Rs.One lakh from one Aanicheri Ibrahim on 18.11.1995 promising to repay the sum on or before 18.5.1996. He executed an agreement and handed over a cheque dated 18.5.1996 for Rs.One lakh. Since Aanicheri Ibrahim was urgently in need of money, the complainant advanced him Rs.One lakh and thereupon Aanicheri Ibrahim authorised him to collect the cheque amount due from the accused. A letter of authority was also executed in favour of the complainant to realise the sum from the accused. The cheque issued by the accused, on presentation, was returned dishonoured, and, statutory notice issued was not responded with any reply or payment. Under the circumstances, the complaint was filed to prosecute the accused. Crl.A.No.191/02 - 2 - 3. The accused, on appearance, pleaded not guilty. The complainant got himself examined as P.W.1 and a Bank Official as P.W.2. Exts.P1 to P6 were also marked, among which Ext.P6 was the Power of Attorney executed by Aanicheri Ibrahim in favour of the complainant. Ext.P6 power of attorney was not produced along with the complaint, but, only after cognizance was taken and summons ordered to the accused. The learned Magistrate holding that on the date of presentation of the complaint, the complainant had no valid authority to prosecute the accused under Section 138 of the N.I.Act, dismissed the complaint as not maintainable. The dismissal of the complaint, as stated above, is challenged in this appeal. 4. I heard the learned counsel for the appellant-complainant. 5. It was urged before me by the learned counsel for the appellant that the letter of authority, Ext.P3, was produced when the complaint was filed and subsequently, a duly executed power of attorney executed as Ext.P6 from the payee under the instrument, namely, Aanicheri Ibrahim, authorising the complainant to prosecute the complaint was also produced before the court below. Inviting my attention to M.M.T.C.Ltd. v. Medchil Chemicals & Pharma (P) Ltd.(2002(1) KLT (Sh.Notes) Page 37 (Case No.44), the learned Crl.A.No.191/02 - 3 - counsel submitted that even assuming that initially the complainant had no authority still by virtue of Ext.P6 power of attorney produced during the trial, the defect had been rectified and his competency to prosecute the complaint was proved. So much so, the dismissal of the complaint for the solitary reason that the power of attorney was produced belatedly and not along with the complaint could not have been taken as fatal and detrimental to the complaint, rendering its dismissal as not maintainable. 6. Whatever be the merit of the case canvassed by the appellant-complainant to assail the dismissal order passed by the learned Magistrate, I find it will not salvage his complaint since it is noticed that the complainant was incompetent in the given facts of the case to prosecute the complaint on other grounds also. A complaint for an offence under Section 138 of the N.I.Act can be lodged only by a payee named in the cheque or the holder in due course of that instrument. A holder in due course is defined under Section 9 of the N.I.Act. In order to become a holder in due course, the most essential factor is the endorsement of the instrument in his name and he should have got such endorsement for valid consideration. The complainant in the present case has filed the Crl.A.No.191/02 - 4 - complaint in his name and not as an agent or power of attorney holder of Aanicheri Ibrahim, the payee in the instrument, to whom the accused is alleged to have handed over that instrument towards discharge of debt or liability. The case of the complainant is that he had paid Rs.One lakh in two or three instalments to the payee Aanicheri Ibrahim and thereupon he was given a letter of authority and handed over the cheque, Ext.P2, authorising him to realise the sum from the accused. No endorsement had been made by Aanicheri Ibrahim as mandated by law to constitute the complainant as the holder of the instrument. How endorsement has to be made is covered by Section 15 of the N.I.Act. In Ext.P2 cheque Aanicheri Ibrahim continues to be the payee and in the absence of any endorsement made as under law, a complaint for the offence under Section 138 of the N.I.Act can be launched by that payee and none else. Of course by executing power of attorney, he can authorise his attorney as his agent to prosecute the complaint on his behalf. But such power of attorney is only an agent and not 'the payee' or 'the holder in due course' of the instrument. As on the date of filing of the complaint, it is evident from the case set up by the complainant, and more particularly by Ext.P3 agreement executed by Aanicheri Crl.A.No.191/02 - 5 - Ibrahim, the amount due under the cheque was assigned in favour of the complainant, authorising him to present the instrument and collect the sum. The agreement would also show that Aanicheri Ibrahim had collected valid consideration making such assignment of the cheque in favour of the complainant. The right of the complainant to prosecute the complaint on the basis of such assignment under the agreement, to sue for realisation of the sum by way of recovery, is entirely different from launching a complaint under Section 138 of the N.I.Act. To do so, the complainant must be either the payee or the holder in due course. The complainant admittedly not being the payee and as no endorsement as mandated by law had been made in his favour to constitute him holder in due course of the instrument, complaint filed by him to prosecute the accused for the offence under Section 138 of the N.I.Act was not at all maintainable. So, the dismissal of the complaint, though on a different reasoning as above, does not call for any interference. The appeal is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE