IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 CRL.A.No. 1578 of 2003() ----------------------------- S.T. NO. 960/99 of CHIEF JUDICIAL MAGISTRATE, THRISSUR APPELLANT/COMPLAINANT:- -------------------------------- SUKANYA KURIES AND LOANS, PUTHUKKADAN IPPU BUILDINGS, PALAKKAD ANGADI, THRISSUR VILLAGE, TRICHUR TALUK, REPRESENTED BY THE CHAIRMAN. BY ADV. MR. P.V.CHANDRA MOHAN RESPONDENT/ACCUSED:- ----------------------------- 1. C.J.VARGHESE S/O. JOSEPH, CHALISSERY HOUSE, VALIYANGADY, ARANATTUKARA, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. R1 BY ADV. MR. P.K.ABOOBACKER (EDATHALA) MS. M.K. PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- Crl. Appeal No. 1578 of 2003 ---------------------------------------------------- Dated this the 29th day of September, 2009. JUDGMENT Heard both sides. 2. The appellant who was the complainant in S.T. No. 960 of 1999 on the file of the Chief Judicial Magistrate, Thrissur, challenges the order of acquittal dated 29.03.2003 passed by the said Magistrate. 3. The case of the appellant in the private complaint filed under Section 138 of the Negotiable Instruments Act, 1881 is as follows:- Towards the amount due in a kuri transaction, the accused issued Ext.P2 cheque dated 16.03.1999 drawn on his account with the MO branch of the Catholic Syrian Bank, Thrissur. The cheque when presented for collection through the bank of the complainant, was dishonoured as evidenced by Ext.P3 dishonour memo dated 19.03.1999. The complainant issued Ext.P4 statutory notice dated 03.04.1999 as evidenced by Ext.P5 postal receipt. The notice was Crl. Appeal No. 1578/2003 : 2 : received by the accused on 08.04.1999 as evidenced by Ext.P6 postal acknowledgment card. The accused did not pay the amount within 15 days nor did he send any reply. Thereupon, the complaint was filed on 19.05.1999. 4. The court below acquitted the accused mainly for the following two grounds:- 1. The case of the accused during his examination under Section 313 Cr.P.C that Ext.P2 was issued as a blank cheque towards security when the accused received the amount after kuri No.39 was auctioned and for the default of 5 instalments committed by him, he was admitted to kuri No.22 in which he had paid 21 instalments and the complaint was filed by misusing the blank signed cheque issued as security, appears to be probable. 2. PW1 who is a clerk in the complainant's company, has not proved that he was duly authorised to file the complaint. Ext.P1 is only an unauthenticated xerox copy of the resolution by the Board of Directors of the Company. 5. After hearing both sides, I do not think that both the grounds mentioned by the court below can be sustained to support the order of acquittal. The clerk of the complainant was examined as PW1. It was elicited from his cross examination that the sum of Rs.32,000/- mentioned in Ext.P2 cheque represents the 5 defaulted instalments made by the accused towards kuri No.39 and it was the accused himself Crl. Appeal No. 1578/2003 : 3 : who brought and gave Ext.P2 cheque after writing the amount and filling up the same. Even though PW1 does not say that a defaulter will not be admitted to another kuri, the court below without anything on record has concluded that if the accused was treated as a defaulter, then he would not have been admitted to kuri No.22 as evidenced by Ext.D1 pass book. PW1 denied the suggestion put to him that it was to wipe off the default made by the accused towards kuri No.39 that he was allowed to join kuri No.22. If so, the court below could not have assumed that the accused was allowed to join kuri No. 22 for the purpose of wiping off the default in kuri No.39. It is significant to note that the accused did not even care to send a reply to Ext.P4 statutory notice. He did not also mount the witness box to speak in support of the defence set up by him. Under these circumstances, the court below was not justified in holding that Ext.P2 cheque represents the defaulted instalments made by the accused towards kuri No.39. Crl. Appeal No. 1578/2003 : 4 : 6. It is true that Ext.P1 is only an unauthenticated photocopy of the resolution passed by the Board of Directors of the complainant company authorising PW1 to file the complaint and give evidence. But then, it was not even faintly suggested to PW1 that he did not have the authority to file a complaint. Even though it was PW1 who filed the complaint, the complaint was filed on behalf of the Sukanya Kuries & Loans which is the complainant. In MMTC Ltd. And another v. Medical Chemicals and Pharma (P). Ltd. - 2002 (1) SCC 234, it was held that the complaint filed in the name and on behalf of the company by its employee without the necessary authorisation was nonetheless maintainable and want of authorisation can be rectified even at a subsequent stage. Here, when the accused had not disputed the locus standi of PW1 to file a complaint and give evidence at any stage of the proceedings, it was not open to him to challenge the locus standi of PW1 to file a complaint on behalf of the company and give evidence on behalf of the company. Crl. Appeal No. 1578/2003 : 5 : 7. The result of the foregoing discussion is that the appellant/complainant had successfully proved that the accused had committed the offence punishable under Section 138 of the Negotiable Instruments Act. The 1st respondent/accused is accordingly found guilty of the said offence and is convicted thereunder. For the said conviction, he is sentenced to pay a fine of Rs.35,000/- (Rupees thirty five thousand only) by way of fine. On default to pay the fine, he shall undergo simple imprisonment for two months. The 1st respondent/accused is given one month's time to deposit the fine amount before the trial court. The amount as and when realised shall be paid to the complainant by way of compensation under Section 357(1)(a) Cr.P.C. Dated this the 29th day of September, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 1578/2003 : 6 :