IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 CRL.A.No. 2170 of 2005 --------------------------------- [AGAINST THE JUDGEMENT IN C.C.NO.161/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA, .................... APPELLANT/COMPLAINANT: ----------------------------------------- K.M.RASHEED, KANDATHIL HOUSE, ARALUMOODU.P.O., TRIVANDRUM, AND PROPRIETOR OF EXCEL TIMBERS, REP.BY HIS POWER OF ATTORNEY HOLDER, S.EARNEST, HOCHMIN BHAVAN, POZHIYOOR.P.O., TRIVANDRUM. BY ADV. SRI.K.BABU THOMAS. RESPONDENTS/ACCUSED: --------------------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.SELVRAJ, PROPRIETOR, BATHEL WOOD INDUSTRY, PRAVACHAMBALAM, NEYYANTTINKARA, TRIVANDRUM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR, R2 BY ADVS.SRI.J.DEVADANAM, SRI.VINOD J.DEV, SRI.PRAMOD J.DEV. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.2170 of 2005 ---------------------------------------------------- Dated this the 9th day of August, 2011 Judgment The complainant is the appellant. The complaint filed under Section 138 of the N.I.Act ended in acquittal under Section 255 (1) Cr.P.C. The case of the complainant was that the accused had purchased timber from his depot and to discharge the liability of Rs.70,000/- Ext.P2 cheque dated 1.4.1999 was issued which on presentment was dishonoured due to insufficiency of funds. The statutory notice was sent to the accused. It was acknowledged by him. The amount covered by Ext.P2 was not paid. 2. The Power of Attorney holder of the complainant was examined as P.W.1 and Exts.P1 to P8 were marked. One witness was examined on the side of the accused as D.W.1 and Exts.D1 and D2 were marked. On consideration of the evidence adduced by the parties, the learned Magistrate found that there is no sufficient evidence to prove the case of the complainant that Ext.P2 was issued to discharge a legally enforcible debt or liability. Though the court below found that all the statutory requirements were seen complied with, based on the finding that Crl.A.2170/05 2 the complainant failed to prove that Ext.P2 was issued to discharge a legally enforceable debt or liability, the accused was acquitted under Section 255(1) Cr.P.C. 3. The learned counsel for the complainant would submit that the learned Magistrate was persuaded to hold against the complainant solely for the reason that the licence of the shop in question stood in the name of the complainant's brother during a particular period. But the fact that there was transaction with regard to the sale of timber from the sawmill of the complainant to the accused was not seriously disputed by the accused. The main contention raised by the accused was that there was another transaction with regard to which the accused was liable to pay Rs.40,000/- and at that time signed blank cheque leaf was given by the accused to the complainant and even though the said amount of Rs.40,000/- was paid by the accused, the signed blank cheque leaf was not returned and making use of the same, this case was filed against the accused. 4. The evidence given by P.W.1, the Power of Attorney holder, according to the defence cannot inspire confidence in the mind of the court since he can have no direct knowledge Crl.A.2170/05 3 regarding the transaction, learned counsel for the accused submits that on going through the evidence given by P.W.1, it is seen that he had been the employee of that sawmill for about 9 years and that he had direct knowledge regarding the transaction mentioned in this case. It was stated by him that he actually saw the accused filling the cheque and signing the same because it was done in his presence. He would further swear that on the date of purchase of the timber, the accused did not pay any amount, but to discharge the liability Ext.P2 was given to the complainant. 5. Though there was extensive cross-examination on so many other aspects, the evidence given by P.W.1 that the cheque was filled and signed by the accused in his presence could not be effectively controverted by the accused. Since the said transaction did take place in his presence and since his evidence that Ext.P1 was signed and issued by the accused remained unshaken, his evidence cannot be brushed aside. Ext.P1 which is the original Power of Attorney executed by the complainant was actually to conduct the case also. Therefore, the contention that P.W.1 is not competent to conduct the case or to give evidence in Crl.A.2170/05 4 the matter also cannot be sustained. It is true that a Power of Attorney cannot be a substitute for the principal with regard to the transaction as such. But here P.W.1 himself was present and he knew the transaction and as such his evidence has to be accepted as true. 6. The question whether the licence of the shop stood in the name of the complainant or in the name of the complainant's brother is immaterial so far as the case on hand is concerned. The crucial question is whether there was a legally enforceable debt/liability. That could be proved through the evidence of P.W.1. Though the accused contended that a sum of Rs.40,000/- was due in some other transaction and that was paid, on going through the evidence, it could be seen that it has nothing to do with the transaction made mention of in this case. On going through Ext.P1, there can be no doubt that it was filled up and signed by the accused himself after affixing the seal of his proprietary concern. Therefore, there could be no difficulty to hold that Ext.P2 was issued by the accused in discharge of a legally enforceable debt or liability. 7. Admittedly, Ext.P2 was bounced due to insufficiency of Crl.A.2170/05 5 funds. Notice was sent within the time prescribed. It was acknowledged by the accused. The amount was not paid. Hence, the accused is to be found guilty of the offence under Section 138 of the Act. 8. In the result, this criminal appeal is allowed. In reversal of the order of acquittal passed by the learned Magistrate, the accused is found guilty under Section 138 of the Act and he is convicted thereunder. He is sentenced to pay a fine of Rs.70,000/- and in default of payment of the same, he will undergo S.I. for two months. The accused/respondent is given two months time to pay the fine amount. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.2170/05 6 Crl.A.2170/05 7