IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 CRL.A.No. 14 of 2004() ---------------------- CC.824/2000 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI AGAINST THE JUDGEMENT/ORDER IN CRLP.556/2003 Dated 21/11/2003 .................... APPELLANT: COMPLAINANT ------------------------------------------- M/S. A.V.THOMAS AND COMPANY, BEACH ROAD, ALAPPUZHA, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, R.R. SURENDRANATH, S/O.K.N.KUTTAPPA PANICKER, KRISHNAGADHA, AVALUKUNNU P.O., ALAPPUZHA. BY ADV. SRI.J.OM PRAKASH RESPONDENTS/ACCUSED/STATE: --------------------------------------- 1. C.D. JAMES ALIAS TOMY CHAKKALAYIL, S/O. DEVASIA, CHAKKALAYIL HOUSE, MYLADUMPARA P.O., UDUMBANCHOLA TALUK, IDUKKI. 2. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.K.MURALEEDHARA KAIMAL FOR R1 SRI.B.RAJESH FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. PUZHAKKARA MYHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON 03/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 14 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 824 of 2000 on the file of Judicial First Class Magistrate Court, Ramankary against the judgment of acquittal of the accused dated 27.3.2003. The first respondent herein was the accused in that case, which was filed by the complainant alleging the commission of an offence under Sec. 138 of N.I. Act. 2. The case of the complainant is briefly as follows. The accused purchased pesticides from the complainant company for a sum of Rs.78,247.20 and to discharge that debt, the accused issued a signed cheque dated 18.12.1998 of Udumbanchola Service Co-operative Bank Ltd. When that cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The complainant company sent a lawyer notice to the accused intimating the dishonour of the Crl.A. No. 14 of 2004 2 cheque and demanding the money, which was received by the accused. But he did not pay any amount. Hence the complaint was filed by the complainant company through K.S. Parameswaran Nair, the Area Manager of the company, who is the duly authorised attorney and who is competent to represent the complainant company in all legal proceedings. 3. In the Magistrate Court, on the side of the complainant PW1 was examined and Exts.P1 to 7 were marked. On the defence side Dw1 and 2 were examined. The learned Magistrate, on considering the evidence, found that the complaint filed by the Manager not having proper authorisation on the date of filing of the complaint is not maintainable and the accused was acquitted under Sec.255(1) of Cr.P.C. Against that judgment of acquittal the complainant filed this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. Crl.A. No. 14 of 2004 3 5. The learned counsel for the appellant submitted that the finding of the Court below that K.S. Parameswaran Nair, who is the Area Manager of the complainant company, was not competent to file the complaint is wrong. Learned counsel for the appellant submitted that the Court below failed to note that the action of Parameswaran Nair was again ratified by the complainant company through Ext.P1 power of attorney produced before the Court below. Learned counsel for the appellant further submitted that since the complainant has proved all the necessary ingredients of the offence under Sec.138 of N.I.Act, the Court below ought to have convicted the accused under Sec.138 of N.I. Act and should have imposed reasonable sentence. The learned counsel for the first respondent supported the judgment of the Court below. 6. Learned counsel for the first respondent/accused, relying on the decision reported in Satish and Company v. S. R. Traders and others (1998 Crl.L.J. 419), argued that specific authorisation by the complainant company is necessary for filing the complaint by the Area Crl.A. No. 14 of 2004 4 Manager of the complainant company. In the decision reported in National Small Industries Corporation Ltd. v. State (NCT of Delhi) (2008 (4) KLT 798(SC), it was held that a company can be represented by an employee or even by a non-employee authorised and empowered to represent the company either by a resolution or by a power of attorney. 7. In the present case, the complaint was filed by K.S. Parameswaran Nair, the Area Manager of the complainant company on behalf of the complainant company. That fact is mentioned in the complaint and along with the complaint the resolution passed by the complainant company on 18.12.1998 was produced authorising him to file the case on behalf of the complainant company and on that basis the learned Magistrate took cognizance of the offence. Therefore, the finding of the court below that the Area Manager of the complainant company is not competent to file the complaint is erroneous. Crl.A. No. 14 of 2004 5 8. In the Magistrate Court, the Manager of the complainant company is examined as DW1. Ext.P1 is the power of attorney executed by the complainant company authrorising him to conduct the case on behalf of the complainant company. PW1 deposed that the complainant company is engaged in the business of pesticides and the accused was an agent of that company. According to him, Rs.78247.20 was due from the accused as the value of pesticides purchased by him from the complainant company and towards that liability, the accused issued Ext.P2 cheque. When that cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Ext.P3 is the dishonour memo and Ext.P4 is the intimation. The complainant company sent a lawyer notice to the accused intimating the dishonour of the cheque and demanding the amount. Ext.P5 is the copy of that notice and Ext.P6 is the postal receipt. Ext.P7 is the postal acknowledgment signed by the accused. PW1 deposed that inspite of the receipt of the lawyer notice, the accused did not pay any amount. Crl.A. No. 14 of 2004 6 9. When the accused was questioned under Section 313 Cr.P.C. he stated that he has not given Ext.P2 cheque and at the same time he admits that he gave the cheque on condition that the pesticides supplied will be taken back if the same is not sold before the expiry date. Dws. 1 and 2 are examined on the side of the accused. DW1 was an employee of the complainant company. He deposed that the accused was a dealer in pesticides and from 1997 - 98 pesticides were supplied to the accused on giving credit period of 45 days and that blank cheque was obtained from the accused as security. 10. DW1 admits that the complainant company filed a misappropriation case against him for the misappropriation of Rs. 6 lakhs before the Peermedu Court. In cross examination DW1 admits that he does not know whether Ext.P2 cheque was executed by the accused at the office of the complainant company. DW2 does not know anything about Ext.P2 transaction. 11. The learned Magistrate, on considering the evidence found that there is ample evidence to prove the fact that the accused executed Crl.A. No. 14 of 2004 7 the cheque in favour of the complainant. On considering the evidence on record, I fully agree with that finding. Since execution of Ext.P2 cheque is proved by the complainant, the presumption under Sections 118 and 139 of the N.I. Act would arise and it is for the accused to rebut that presumption. Since the complainant has proved all the ingredients of the offence under Section 138 of the N.I. Act, the learned Magistrate is not justified in acquitting the accused. As the accused committed the offence under Section 138 of the N.I. Act, he is convicted for that offence. 12. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.80,000/- would meet the ends of justice. Crl.A. No. 14 of 2004 8 13. Accordingly this appeal is allowed. The judgment of acquittal in C.C.No. 824 of 2000 on the file of the J.F.C.M. Court, Ramankary under Section 255(1) Cr.P.C. is set aside and the accused is found guilty and convicted under Section 138 of the N.I. Act and he is sentenced to pay a fine of Rs.80,000/- The said fine shall be paid to the appellant as compensation under Section 357(1) of Cr.P.C. The accused is permitted either to deposit the fine amount before the court below or directly pay the compensation to the appellant within four months from today and produce a memo to that effect before the court below in case of direct payment. If the accused fails to deposit or pay the said amount within the aforesaid period, she shall suffer S.I. for a period of three months by way of default sentence. (M.L. JOSEPH FRANCIS) Judge tm Crl.A. No. 14 of 2004 9