IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 Crl.L.P..No. 887 of 2011() -------------------------- ST.1947/2006 of J.M.F.C., NILAMBUR, dtd.8.8.2007 .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ JOPAUL PAYYAPPILLY, MANAGER, CHEMMANNUR FASHION JEWELERS, NILAMBUR, MALAPPURAM DISTRICT. BY ADV. SRI.U.K.DEVIDAS RESPONDENT(S): ACCUSED/STATE ----------------------------------------------- 1. SAKEENA ANIL, KUTTINIKKAL HOUSE, PULIKALLODI, VADAPURAM, NILAMBUR, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR AT HIGH COURT OF KERALA. BY ADV.SMT.LALIZA T.Y., PUBLIC PROSECUTOR FOR R2 SRI.BINDU SREEKUMAR FOR R1 THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.L.P..No. 887 of 2011 APPENDIX EXHIBITS FOR THE PETITIONER : ANNEXURE A : CERTIFIED COPY OF THE ORDER DATED 8.8.2007 IN S.T.No.1947 of 2006 ON THE FILE OF JFCM-NILAMBUR. EXHIBITS FOR THE RESPONDENTS : NIL //TRUE COPY// P.A.TO JUDGE ami/ V.K.MOHANAN, J. ------------------------------- Crl.L.P.No.887 of 2011 ------------------------------- Dated this the 14th day of November, 2011. O R D E R The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the judgment dated 8.8.2007 in S.T.No.1947 of 2006 in the court of Judicial First Class Magistrate-Nilambur, by which the learned Magistrate acquitted the accused, in his complaint, under Section 255 of Cr.P.C. 2. The case of the complainant is that, the accused has purchased gold ornaments worth Rs.1,06,001/- from Chemmannur Fashion Jewellers, Nilambur, and the complainant is working as Manager of the said jewellery and the accused paid Rs.26,000/- on the date of purchase of the gold ornaments, ie., on 12.6.2006 and issued a cheque for Rs.80,000/- for the balance amount and when the said cheque presented for collection, it was returned 2 Crl.L.P.No.887 of 2011 for 'want of funds in the account' of the accused and the accused has not repaid the amount covered by the dishonoured cheque, inspite of issuing statutory notice and thus according to the complainant, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. With the above allegation, by filing a complaint, the complainant approached the Judicial First Class Magistrate court-Nilambur, whereupon cognizance was taken for the said offence and instituted S.T.No.1947 of 2006. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and Exts.P1 to P9 were marked. Though no witness was examined, Ext.D1 is marked from the side of the defence. 3. The trial court has considered three points for its consideration, among which the first point is, whether the complaint is maintainable. The trial court after verifying the entire materials and evidences on records, has specifically found that, 'the complaint is not filed by the 3 Crl.L.P.No.887 of 2011 proper person and therefore the complaint is not maintainable.' The trial court has also found that, the case of the complainant that Ext.P2 cheque was issued towards the value of gold ornaments purchased on credit, cannot be believed and consequently held that Ext.P2 cheque was not issued for discharging a legally enforceable debt. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for, under Section 378(4) of Cr.P.C. 4. I have heard Sri.U.K.Devidas learned counsel for the petitioner and I have also perused the judgment of the trial court. 5. The learned counsel for the petitioner vehemently submitted that, PW1, as the Manager of the Chemmannur Fashion Jewellers, Nilambur, has proved the case of the complainant and the execution and issuance of the cheque in question and the complainant has produced the power of attorney to prosecute the matter and therefore the findings 4 Crl.L.P.No.887 of 2011 of the court below is not correct. Learned counsel has also pointed out that, the notice was also sent by the very same person as evident from Ext.P5. Therefore according to the learned counsel, there is a formal demand from the part of the complainant but the accused failed to pay the amount in terms of the statutory notice caused to sent by the complainant. Thus according to the learned counsel, there is every scope to interfere with the findings and order of acquittal recorded by the court below and therefore, the petition is to be allowed. 6. In the light of the argument advanced by the counsel for the petitioner and in the light of the findings of the court below based upon the evidence and materials referred to therein, the question to be considered is whether the petitioner has succeeded n making out a case so as to grant leave as sought for under Section 378(4) of Cr.P.C. According to the petitioner, Ext.P2 cheque dated 4.7.2007 is issued in favour of the payee, shown therein 5 Crl.L.P.No.887 of 2011 which is a firm namely, Chemmannur Fashion Jewellers, Nilambur. The complainant is not Chemmannur Fashion Jewellers, Nilambur, represented by its Proprietor or Managing Director or Managing Partner, whoever it may be. It is borne out from para 10 of the judgment of the trial court that, according to Pws.1 and 2 the firm is constituted by PW2 and one Boby Chemmannur and Pws.1 and 2 further admitted that, the firm has no branches. The trial court has found that as per the muster role kept in the firm, PW1 is only a salesman and one Thomas was the Manager. The trial court on the basis of the above materials has found that, evidence of PW1 itself would create doubt regarding claim of Pws.1 and 2 that, PW1 was the Manager of the firm during the relevant time. Thus the trial court has found PW1 was not the Manager of the firm and he has no authority to represent the firm. The trial court has also found that, Ext.P8 power of attorney was executed on 4.7.2007, and that is long after the filing of the present 6 Crl.L.P.No.887 of 2011 case. Thus, on a reading of the complaint would show that, the complaint was not filed by the power of attorney of the Managing Partner of the firm. The Honourable Apex Court in the decision reported in Milind Shripad Chandurkar V. Kalim M.Khan [2011(2) KLT 271 (SC)] has held that, “when cheque was drawn in the name of some proprietary concern, proprietor cannot claim to be payee of cheque or can he be holder in due course, unless he proves that he is sole proprietor of concern and being so, he could also be payee himself.” In the very same decision, the Apex Court has also laid down certain guide lines and held that, “so far as S.142 is concerned, a complaint shall be maintainable in the name of the “payee”, proprietary concern itself or in the name of the proprietor of the said concern”, and it is further held that “the general principle of company law or civil law would apply for maintaining S.138 of the Act 1881.” On examining the facts and circumstances involved in the case, in the light of the above decision it can be seen that, though 7 Crl.L.P.No.887 of 2011 in the cheque in question the payee is shown as 'Chemmannur Fashion Jewellers, Nilambur', the complaint is filed by one Jopaul Payyappilly, the Manager of Chemmannur Fashion Jewellers, Nilambur, whose authority is not properly proved or established. Therefore, according to me, the findings of the court below under point No.1 is absolutely correct and justified by the decision of the Apex court cited above. Therefore, even if an appeal is entertained, there is no scope for any interference with the above finding and as such there is no merit in this petition. In the result, this petition is devoid of any merit and accordingly the same is dismissed. V.K.MOHANAN, Judge ami/