IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 CRL.A.No. 888 of 2001() {S.T.NO.146/1998 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE} .................... APPELLANT(S)/COMPLAINANT: -------------------------------------------- M/S.SABARIKA SAREES, 1ST FLOOR, K.V.COMPLEX, KALLAI ROAD, KOZHIKODE, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, N.V.VIJAYARAJAN BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/ACCUSED & STATE: ---------------------------------------------------- 1. P.K.MOHAMMED, PARTER, ARCHANA TEXTILES, IRUTTY, KANNUR DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.A.No.888 of 2001 ------------------------- Dated this the 11th day of March, 2009. JUDGMENT The complainant in S.T.No.146/98 on the file of the Chief Judicial Magistrate, Kozhikode, is the appellant herein. 2. The firm represented by its Power of Attorney, filed a complaint alleging that the accused had issued Ext.P1 cheque for an amount of Rs.30,676/-; that the cheque, on presentation, was dishonoured stating “exceeds arrangement”. A notice was sent, which was not replied to. Thereafter the complaint was filed. 3. The court below found that the issuance of the cheque and the service of notice, as contemplated by the statute have all been proved by the complainant, but nevertheless proceeded to acquit the accused on the ground that PW.1, who is stated to be Power of Attorney, has not proved his authority to represent the complainant or the lodge the complaint on the date on which it was lodged. On this basis, the accused was CRL.A.No.888 of 2001 :: 2 :: acquitted under Section 255(1) of the Code of Criminal Procedure. Hence this appeal by the complainant. 4. Notice was sent to the accused on this appeal. After sending notice for several times, service of notice was ordered by affixture. There was no appearance on behalf of the accused, though service of notice has been completed. 5. I heard learned counsel for the appellant. 6. The fact that the cheque was signed and issued by the accused and that the cheque was returned because of insufficiency of funds in the account and that a demand notice had been issued and served on the accused are matters found in favour of the complainant by the court below. Paragraph 7 of the judgment reads as follows: “Exhibit P1 cheque contains even the business seal of the accused. There is no specific case for the accused during evidence stage that either his signature was forged or that the contents in the cheque were fraudulently filled up. The mutually contradictory stand taken by the accused during the evidence stage and in the 313 CRL.A.No.888 of 2001 :: 3 :: statement is also eloquent of the hollowness of his case. The accused has not been able to give satisfactory evidence regarding the possession of his signed cheque with the complainant. Excepting the bald suggestion that the account books relating to the transaction are not produced, which in the nature of the case I feel unnecessary, accused has not adduced satisfactory evidence to rebut the statutory presumption regarding consideration. The complaint regarding the non- receipt of the notice does not also appear to be convincing so long as the accused has no case that the address shown in exhibit P4 notice is incorrect. With all these the ultimate fate of the complaint will mainly depend upon the authority of PW1 to represent the firm and give evidence.” 7. Thereafter, the court below proceeded to hold that Ext.P8 Power of Attorney, which is seen to have been executed on 7.10.1994, cannot confer power on PW.1 in such a manner as to enable him to file a complaint in 1998. The court below did not accept the Notarised Photostat copy of the Power of Attorney, which was produced along with the complaint. The said Power of Attorney is seen to have been executed by the partners of the firm on 7.10.1994. The court below has CRL.A.No.888 of 2001 :: 4 :: noted that except for the production of a notarised Photostat copy, no attempt was made by the complainant to show that the original of the same was irretrievably lost or that such a Power of Attorney had actually been executed. It is the correctness of this view, which has been challenged in this appeal. 8. I am inclined to agree with the submissions made by the learned counsel for the appellant. Firstly, the notarised copy of the Power of Attorney was produced along with the complaint. It is mentioned as item No.5 in the list of documents. PW.1 is the Power of Attorney examined on behalf of the complainant. There is nothing to show that PW1 lacks competence to represent the complainant. His evidence was tendered on 10.12.1999. The Notarized copy of the Power of Attorney, produced along with the complaint, was not marked and no reason is readily discernible from the records as regards this. But I find it noteworthy to mention that Ext.P8 Power of Attorney, which was later CRL.A.No.888 of 2001 :: 5 :: tendered before the court, makes reference to the 1994 Power of Attorney and asserts adequate power with PW.1. There was no tenable reason not to accept the version of PW.1 that the original of the said Power of Attorney, Notarized copy of which was produced along with the complaint was actually lost. If that be so, the existence of adequate power with PW.1 to have represented the complainant firm when the complaint was lodged in 1991, should not have been disputed or doubted by the court below. 9. All the others aspects, which would go to show that the accused is guilty, have been discussed and found in favour of the complainant. In these circumstances, I am of the view that the order of acquittal is unsustainable. Accordingly, the appeal is allowed. The order of acquittal is set aside. The accused is convicted for the offence under Section 138 of the Act. He is sentenced to pay a fine of Rs.32,000/-, in default of CRL.A.No.888 of 2001 :: 6 :: which he shall undergo simple imprisonment for a period of three months. The accused is granted 4 months' time to pay the fine. The court below shall proceed to take appropriate steps to see that the sentence is executed. As and when the fine amount is deposited, an amount of Rs.31,000/- (Rupees Thirty One thousand only) shall be paid out of the same to the complainant as compensation under Section 357 of the Code of Criminal Procedure. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge