IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 20TH FEBRUARY 2009/1ST PHALGUNA, 1930 Crl.Rev.Pet.No. 286 of 2002() ------------------------------------------- CRA.NO.45/99 OF ADDL.SESSIONS COURT (ADHOC)FAST TRACK COURT NO.I, THRISSUR S.T.NO.49/96 OF CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR. .............. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------- LALITHA, W/O.BALAN, MECHERY HOUSE, KUTTANELLUR P.O., OLLUR VILLAGE, THRISSUR. BY ADVS. MR.N.P.SAMUEL, MR.REJITH KUMAR V.R. RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------------- 1. R.PARESH, S/O.T.SHA, "PARESH MANI", PLAKKAT LANE, THRISSUR, REPRESENTED BY POWER OF ATTORNEY HOLDER M.R.SUKUMARAN,S/O.LATE RAVUNNY, MENOTHPARAMBIL HOUSE, AYYANTHOLE VILLAGE, THRISSUR TALUK, THRISSUR DIST. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR MR. JAI GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.2216/2002 IN CRLR.P.NO.282/2002 DISMISSED 20/02/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. --------------------------------- Crl.R.P.No.286 of 2002 - B ----------------------------- Dated this the 20th day of February, 2009 O R D E R The accused in S.T.No.49/96 on the file of the Chief Judicial Magistrate, Thrissur who was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, for short 'the NI Act', on his conviction and sentence for such offence, which was confirmed in appeal by the Additional Sessions Judge, Thrissur, has filed this revision petition questioning the legality, propriety and correctness of the conviction and sentence imposed against him. Trial court finding him guilty of the offence, on his conviction, sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.20,000/- with default term of simple imprisonment for one month more. Sentence as imposed above was confirmed in appeal which upheld the conviction. 2. The learned counsel for the revision petitioner/accused contended before me that a complaint under Section 138 of the NI Act is entertainable only on its presentation by the payee or Crl.R.P.No.286 of 2002 - B 2 the holder in due course, and none else. Inviting my attention to Section 142 of the NI Act, the learned counsel urged that the complaint in writing imputing an offence under Section 138 of the NI Act has to be “ made by the payee, or as the case may be, a holder in due course of the cheque”. In the present case, the complaint was presented by the power of attorney holder, an incompetent person, according to the learned counsel, and as such the cognizance of the offence taken on such complaint was illegal. That being so, it is contended that the conviction and sentence imposed against the accused on a complaint presented by an incompetent person is unsustainable and liable to be set aside. In the alternative, the learned counsel also advanced a plea for modification of the sentence imposed, if for any reason the challenge raised questioning the competency of the power of attorney holder of a complaint to present the complaint is found unacceptable. 3. The factual situation for prosecution of the accused and the evidence let in the case to prove the indictment are not impeached before me and as such no discussion in that matter emerges for consideration. Perusing the records of the case, I Crl.R.P.No.286 of 2002 - B 3 notice that the materials placed fully support the conviction of the accused for the offence under Section 138 of the NI Act. As the challenge in the revision petition is confined to the legality of the cognizance taken under complaint which was presented by a power of attorney holder of the complainant, what is required to be examined is only whether there is any bar inhibiting the presentation of such a complaint through an agent. The learned counsel for the revision petitioner/accused relied on M/s. M.M.T.C. Ltd. and Another v. M/s. Medchi Chemicals and Pharma (P) Ltd. and Another (AIR 2002 SC 182) to contend that the eligibility criteria prescribed under Section 142 is that the complaint under Section 138 of the NI Act must be by the payee or the holder in due course of such cheque. An exception thereof, according to the learned counsel, is permissible only in the case of a company or firm. I am afraid that the decision cited by the counsel does not support the proposition canvassed that a power of attorney holder of a payee or holder in due course of the cheque is incompetent to present and prosecute the complaint on behalf of the above respective persons. Competency of a power of attorney holder to present a complaint Crl.R.P.No.286 of 2002 - B 4 on behalf of the payee is beyond the pale of doubt and it has been explicitly made clear in an authoritative judicial pronouncement namely, Gopalakrishnan v. Karunakaran (2006 (4) KLT 416 (Mad.H.C.)). In the above decision it is pointed out that the term “complainant” is not defined either in the Code of Criminal Procedure or in Power of Attorney Act. It has been held that for the purpose of Section 200 of the Code of Criminal Procedure, complainant should be taken to mean a person who presents a complaint to the court or who makes a complaint to the court. In that case, the question that arose for consideration was whether a complaint presented under Section 138 of the NI Act by the power of attorney holder it could be signed by him on behalf of the complaint. In that context, it has been held that every person has a right to appoint an agent for any purpose except in cases where the act to be performed is personal in character or is annexed to a public office or an act involving fiduciary obligation. Apart from the above mentioned exceptions, the law is clear that whatever a person can do for himself, he can do it through an agent. In common law, when a person authorises another to sign for him, the signature of the Crl.R.P.No.286 of 2002 - B 5 person so signing is to be treated as if the person authorising signed the same. Unless the statute otherwise provides, an application or petition signed by the person authorised would be in order and valid. There is nothing in Section 142 of the NI Act interdicting the payee or holder in due course of a cheque from appointing a power of attorney to prosecute a complaint on his behalf for the offence punishable under Section 138 of the NI Act. Cognizance taken on a complaint presented by a power of attorney of payee or holder in due course is unimpeachable, and at the most the competency of power of attorney holder, the authorised agent, if he was not privy to the transaction can be assailed provided he is examined as a witness. That of course is a matter of evidence and not an issue touching the cognizance of the offence on the complaint. There is no merit and the challenge canvassed by the learned counsel that the cognizance taken under complaint presented by the power of attorney of the payee is not legal. 4. On the plea raised for modification of the sentence imposed against the accused, I am persuaded to do so, since it can be taken for granted that in very many cases involving Crl.R.P.No.286 of 2002 - B 6 Section 138 of the NI Act, default in payment is committed not deliberately but owing to financial difficulties. A convict for the offence under Section 138 of the NI act that too in respect of a cheque for a sum of Rs.18,000/-, if compelled to undergo incarceration in prison for a term of imprisonment, that would definitely impair his social status and further cause havoc to him and his family. 5. Having regard to the fact that the offences under these types of commercial transactions, in the absence of an exceptional circumstance, do not warrant incarceration of the offendant but only a deterant punishment, I am of the view that sentence imposed against the revision petitioner/accused has to be modified as one of imprisonment till rising of the court and payment of compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) under Section 357(3) of the Code of Criminal Procedure. In default of payment of compensation, the revision petitioner/accused shall undergo simple imprisonment for a period of two months. Compensation if realised shall be released to the complainant. Crl.R.P.No.286 of 2002 - B 7 6. The revision petitioner/accused shall appear and his sureties shall produce him before the Chief Judicial Magistrate, Thrissur on 4.5.2009, and the learned Magistrate shall execute the sentence as directed. The revision petition is partly allowed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-