IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 CRL.A.No. 2030 of 2003() ----------------------------------- CC.305/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... APPELLANT(S): COMPLAINANT ------------------------------------------- M/S.LITHAID INDIA PVT. LTD., OPP. TOWN HALL, BANERJI ROAD, ERNAKULAM KOCHI 18. REP.BY THE PURCHASE MANAGER, JOSE P.VARUGHESE, S/O. P.P.JOSEPH, PARAYIL HOUSE, PALLAM P.O., KOTTAYAM (NOW RESIDING AT KARUKAPPALLY HOUSE, INDIRA ROAD, KOCHI 25.) BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): ACCUSED & STATE ------------------------------------------------------ 1. M.K.SULOCHANA, PROPRIETRIX, LOCHANA OFFSET PRINTERS, THEVARA , KOCHI. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.D.PEETHAMBARAN R2 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss N.K.BALAKRISHNAN, J ----------------------------------------- Crl.Appeal No.2030 OF 2003 ---------------------------------------- Dated this the 4th day of August, 2011. JUDGMENT Heard the learned counsel for the appellant. There is no representation for the first respondent/accused. The complaint was filed against the 1st respondent under Section 138 of the N.I.Act. The complainant is a Private Limited Company. P.W.1 is stated to be the Power of Attorney Holder of the complainant company. The original Power of Attorney was stated to have been produced before J.F.C.M.Court, Muvattupuzha. Ext.P1 cheque was stated to have been issued by the accused to discharge a debt/liability of Rs.50,000/-. Cheque bears the date 27.1.1998. To prove the case, the Power of Attorney Holder was examined as P.W.1 and Exts.P1 to P8 were marked. The learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. holding that Ext.P8 is only a certified copy of the Power of Attorney alleged to have been given to P.W.1. It was further found that there is no document to show that Rajan who was stated to have given the Power of Attorney was the Managing Director of the Crl.Appeal No.2030 OF 2003 2 company nor is there any evidence to show under what authority the Power of Attorney was executed in favour of P.W.1. There is no explanation also why the original Power of Attorney was not produced. 2. In evidence, it was stated by P.W.1 that the amount due to the company was the money due for the work done/service rendered by the company as required by the accused. The fact that Ext.P1 bears the signature of the accused was not denied. Execution of the cheque was not seriously disputed. The plea was one of discharge. When presented for encashment it was bounced due to insufficiency of funds. Notice required under proviso (b) to Section 138 was sent and the same was acknowledged by the accused. No reply was sent by the accused to dispute the transaction. In fact no serious challenge was made regarding the transaction averred in the complaint. As such it can be held that Ext.P1 was issued by the accused in discharge of a legally enforceable debt/liability due to the complainant/company. 3. The learned counsel for the appellant submits that in fact Ext.P8 was marked without objection and that was why no Crl.Appeal No.2030 OF 2003 3 further evidence on that point was adduced. The fact that T.M Rajan was the Managing Director of that company was also not seriously disputed by the accused. In fact the only case of the accused was that she had discharged part of the amount due to the complainant but no evidence was adduced in proof of the plea of discharge to put forward by her. So much so it would appear that the accused in a way admitted the liability. Her plea of discharge remained unsubstantiated. In such circumstance the non-sending of reply would also strengthen the case of the prosecution. Viewed in this background it can be found that the reason mentioned by the learned Magistrate to acquit the accused was not founded on any plea raised by the defence and so the learned counsel for the appellant would submit that the acquittal of the accused is bad. Since Ext.P8 was marked without any objection its admissibility cannot be questioned at a later stage. 4. To sum up, the execution of Ext.P1 was proved by the prosecution. The evidence that it was executed to discharge the liability of Rs.50,000/- as mentioned earlier could not be rebutted by the accused. All other statutory formalities were Crl.Appeal No.2030 OF 2003 4 duly complied with. Hence the order of acquittal passed by the learned Magistrate is set aside. In the result, this appeal is allowed. The respondent/accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act and the respondent/accused is sentenced to undergo imprisonment till the rising of the court and she is sentenced to pay a sum of Rs.50,000/- as compensation to the complainant in default whereof she will undergo simple imprisonment for one month. The respondent/accused is granted two months time to pay/deposit the amount. N.K.BALAKRISHNAN, JUDGE srd/mns