IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 CRL.A.No. 79 of 2000() ---------------------- CC.211/1994 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... APPELLANT/COMPLAINANT: ------------------------------ P.K.ABDUL RAHIM, SECRETARY, IDEAL PUBLICATION TRUST, MADHYAMAM DAILY, CALICUT. BY ADV. M/S M.N.S.NAYAR & CO; SRI.M.T.SURESH KUMAR FOR APPELLANT. RESPONDENTS/ACCUSED AND STATE: ------------------------------------------ 1) PANGHAT ABDUL RAZAK, S/O.MOIDEENKOYA, THARAMMAL HOUSE, POKKUNNE, CALICUT. 2) STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.G.RAJENDRAN FOR R1 PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ==================== Crl.Appeal No.79 of 2000 -A =========================== Dated this the 23rd day of September, 2008. J U D G M E N T This appeal is preferred by the complainant in C.C.No.211/1994 of the Judicial First Class Magistrate Court, Kunnamangalam, challenging the order passed by the court below under Section 255(1) Cr.P.C., by which the respondent/accused was acquitted of the charge against him under Section 138 of the Negotiable Instruments Act. 2. C.C.No.211/1994 is a case instituted upon a private complaint filed by the appellant herein under Section 138 of the Negotiable Instruments Act. The case of the complainant is that towards part payment of certain amounts due to the Madhyamam Daily, the accused/respondent had issued a cheque dated 30.12.1993 bearing No.299940 drawn on the account maintained by the accused in the Canara Bank, Cherootty Road Branch, Calicut, for a sum of Rs.13,000/-. It is alleged by the complainant that when the cheque in question was presented for encashment in the Federal Bank Limited, Nadakav West Branch, Crl.Appeal No.79 of 2000 -A 2 Calicut, the same was dishonoured and returned for the reason of insufficiency of fund in the account of the accused. On getting the dishonour memo, the said amount was claimed by the complainant. He was forced to send a lawyer notice on 14.3.1994 informing the dishonour of cheque and demanding payment of the cheque amount within the statutory period. According to the complainant, the lawyer notice was received by the accused on 16.3.1994. But no payment was made as demanded and therefore he preferred the complaint. 3. After taking cognizance and instituting the case pursuant to the process, the accused appeared before the court below and pleaded not guilty to the particulars of offence when the same read over and explained to him which resulted in the further trial of the case during which PWs 1 to 3 were examined from the side of the complainant and marked Exts. P1 to P8 as documentary evidence. On the side of defence, DWs 1 to 3 were examined and marked Exts.D1 to D13 documents. 4. Based upon the rival contentions and the materials on record, the court below formulated four issues for its Crl.Appeal No.79 of 2000 -A 3 consideration, among which the first point is, whether the complainant is competent to file the complaint. After an elaborate discussion and appreciation of the materials on record, the finding of the court below under point No.1 is against the complainant and finally acquitted the accused under Section 255 (1) Cr.P.C. It is the above order of acquittal which is challenged in this appeal. 5. I have heard the learned counsel for the appellant as well as the learned counsel for the 1st respondent and also the learned Public Prosecutor for the 2nd respondent. 6. At the outset, it is to be noted that connected with the same transaction, besides the present case, three other cases were pending before the same trial court and in all those cases, the trial court has found in favour of the accused and the accused, who is one and the same person in all these cases has been acquitted by the court below against which the complainant had filed three separate appeals before this Court and a learned Single Judge of this Court has dismissed all those appeals. Crl.Appeal No.79 of 2000 -A 4 7. The case of the complainant is to the effect that when the accused was working as a commission agent, he had misappropriated some amount received by him towards advertisement charge and the same ought to have been entrusted with the complainant and when the misappropriation was detected, he had admitted his liability of Rs.91,000/- towards the complainant and towards the discharge of the above liability, he had issued six cheques each for an amount of Rs.3,000/- and four cheques, each for a sum of Rs.2,000/- and Ext.P1 in the present case is one of the cheques so issued by the accused, which, according to the complainant, when presented for encashment, was dishonoured for want of sufficient funds and after complying with the statutory formalities he preferred the complaint. Thus, according to the complainant/appellant the order of acquittal passed by the court below is erroneous and illegal. On the other hand, the defence set up by the accused is to the effect that the complainant, under threat of dismissal of the accused from the service of the complainant's establishment, forcibly obtained 10 cheques for a total sum of Rs.26,000/-: Out Crl.Appeal No.79 of 2000 -A 5 of the 10 cheques, four cheques are for Rs.2,000/- each and the other six cheques are for Rs.3,000/- each. In the present case, Ext.P1 is a cheque dated 30.12.1993. The contention of the defence is to the effect that out of the six cheques, each for Rs.3,000/-, in one cheque namely, Ext.P1, by inserting the figure “1” before the figure of “3”, the amount is forged and appeared as Rs.13,000/- instead of Rs.3,000/- and the defence controverted the name and the locus standi of the complainant. 8. The learned counsel appearing for the complainant/appellant submitted that the accused had admitted his signature in Ext.P1 cheque. But the only dispute is with respect to the figure shown in the Ext.P1 cheque. It is also pointed out by the learned counsel for the appellant that at the instance of the accused, though Ext.P1 cheque was sent for expert opinion and going by Ext.P13 expert opinion, it appears that the defence could not establish its case and the presumption available in favour of the complainant under Section 139 of the Negotiable Instruments Act has not been rebutted so far and therefore the trial court is wrong in acquitting the accused. Crl.Appeal No.79 of 2000 -A 6 9. Per contra, the learned counsel for the respondent pointed out that the complainant has failed to establish the case under Section 138 of the Negotiable Instruments Act. According to him, the available materials are sufficient to show that the accused had discharged his burden to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act. It is pointed out by the learned counsel for the respondent/accused that the other materials produced by the defence would show that the accused was working as a permanent employee under the management of the complainant and connected with a labour dispute, the accused had preferred a claim petition before the Labour Court etc. 10. I have considered the rival contentions advanced by the respective counsel and also considered the materials and evidence on record. After an elaborate consideration of the facts and circumstances of the case, I am of the view that this appeal can be disposed of, after examining the correctness of the finding arrived at by the trial court under the issue No.1 framed, since, if this finding of the court below is approved, this Court need not go Crl.Appeal No.79 of 2000 -A 7 into further questions regarding the execution of the cheque or otherwise the correctness of the cheque and all connected issues. As indicated earlier, connected with the same transaction, altogether there were four cases and in the other three cases, the trial court found in favour of the accused and accused, who is one and the same person, has already been acquitted and though it was challenged before this Court by filing separate appeals, this Court has also confirmed the order of acquittal passed by the court below in favour of the accused. 11. It is pointed out by the learned counsel for the respondent that the first ground, on which the respondent was acquitted by the court below as well as this court, is squarely applicable to this appeal also. The learned counsel for the appellant submitted that this case is entirely different from that of the three other cases. Learned counsel pointed out that, as indicated from the cause title of the appeal memorandum, the complainant is representing the Madhyamam Daily, Calicut in whose favour the respondent/accused had issued the cheque in question. Therefore, the finding of the court below under point Crl.Appeal No.79 of 2000 -A 8 No.1 is incorrect and is liable to be interfered. I have repeatedly perused the judgment of the trial court, especially paragraphs 6 and 7 of the same judgment, which deal with the first issue. The trial court found that Ext.P1 cheque for Rs.13,000/- is alleged to have been issued in favour of Madhyamam Daily. It is also observed that description of the complainant even in the cause title of the complaint is as P.K.Abdul Rahim, Secretary, Ideal Publication Trust, Madhyamam Daily, Calicut. On his examination he deposed before the trial court that he is the Secretary of Ideal Publication Trust and Managing Director of Madhyamam Daily. Ext.P8 is the authorisation dated 22.1.1999, issued by the Chairman for Ideal Publication Trust, stating that the meeting of the Ideal Publication Trust held on 18.1.1994 has authorised Mr.P.K.Abdul Rahim, Secretary of the Trust to proceed against Panghat Abdul Razak. From the above, it is clear that for initiating prosecution against the accused, authorisation is given by the Ideal Publication Trust, though it is defective as pointed out and concluded by the court below. The trial court has stated the description of the complainant, as Madhayamam Daily and Crl.Appeal No.79 of 2000 -A 9 PW1 would say that he is the Managing Director of Madhyamam Daily. Thus the trial court found that Madhyamam Daily has separate entity. So the complainant should have been Madhyamam Daily and it should have been represented by its Managing Director. It is also held by the trial court that, if Ideal Publication Trust had any relation with Madhyamam Daily, it should have been specified the same in the complaint and substantiated by producing document. It is also observed by the court below that the prosecution should stand on its legs irrespective of the challenge from the accused. Accordingly, the trial court found that the complaint does not show that it was filed by the payee or holder in due course of Ext.P1 cheque. Therefore, according to the trial court, the complaint is not maintainable at the instance of the person, in the capacity, as shown in the complaint. 11. Going by the complaint and also the cause title of the appeal memorandum, it appears that Mr. P.K.Abdul Rahim has been shown as the complainant, who is representing the Ideal Publication Trust as its Secretary, though the name of Crl.Appeal No.79 of 2000 -A 10 Madhyamam Daily, Calicut is shown in the cause title. It is not clear or not proved as to how the Madhyamam Daily comes into the picture. From the cause title, one can understand that the actual complainant is the Ideal Publication Trust represented through its Secretary, namely, P.K.Abdul Rahim. Of course, a statutory body can be represented only through a human being. But in the present case, the Ideal Publication Trust, is a Trust represented by its Secretary, namely, P.K.Abdul Rahim. It is not proved or it cannot be said that Madhyamam Daily is the complainant because Madhyamam Daily is not represented by any authorised officer or official of the company through a human being. Therefore, I am of the view that the finding arrived at by the trial court under issue No.1 is absolutely correct and no interference is warranted at all. Though the trial court found in favour of the accused and against the complainant under issue No.2 to 4, I do not propose to go into the merits of those finding in the light of the finding which I have already arrived at upon the first issue. Crl.Appeal No.79 of 2000 -A 11 In the result, this appeal is devoid of any merit and no interference is warranted and accordingly it is dismissed, but no order as to costs. V.K.MOHANAN JUDGE. bkn/-