BISMI APPLIANCES v. DILSHA GROUP HOME APPLIANCES & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934 ## CRL.A.No. 1535 of 2009 --------------------CC.155/2005 of JUDL.M.F.C.-I, ERNAKULAM CRLP.424/2009 DATED 19-06-2009 ## APPELLANT:COMPLAINANT: ------------------------ BISMI APPLIANCES, DESHABHIMANI ROAD, KALOOR, COCHIN-17, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, SHAMEER.K.P. BY ADV. SMT.A.P.LALY @ LALY VINCENT RESPONDENTS: - -------------- 1. DILSHA GROUP HOME APPLIANCES, ERAMELLOOR.P.O., ALAPPUZHA DISTRICT. 2. KISHORE, AGED 32 YEARS, PARTNER, DILSHA GROUP HOME APPLIANCES, ERAMELLOOR.P.O., ALAPPUZHA DISTRICT. 3. DILEEP, AGED 32 YEARS, PARTNER, DILSHA GROUP HOME APPLIANCES, ERAMELLOOR.P.O. ALAPPUZHA DISTRICT. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.R.MURALEEKRISHNAN PUBLIC PROSECUTOR SMT.LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.1535 of 2009** ## **------------------------------Dated this the 16[th] day of October, 2012.** ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 3.6.2008 in C.C.No.155 of 2005 of the court of Judicial First Class Magistrate-I, Ernakulam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that, it is a partnership firm engaged in the business of home appliances and electrical goods and accused is a partnership firm who used to purchase home appliances and electrical goods from the complainant's shop and towards the discharge of the liability for the purchases made by the accused, accused nos.2 and 3 issued a post 2 ## **Crl.A.No.1535 of 2009** dated cheque for `50,000/-, ie., Ext.P1 cheque, which when presented for encashment dishonoured as there was no sufficient fund and the accused has not repaid the amount, though a statutory notice was served on them and thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. From the side of the complainant, PW1, who is the power of attorney holder of the complainant, was examined and produced Exts.P1 to P10 documents. No defence evidence is adduced. The trial court finally found that the evidence of PW1 is not sufficient to prove the original transaction between the complainant and the accused, and could not show that an amount of `50,000/- was actually due from the accused to the complainant and thus the complainant has failed to prove the original transaction. It is on the basis of the above finding, the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. The challenge in this appeal is against the above finding and order of 3 ## **Crl.A.No.1535 of 2009** acquittal. 3. Adv.Smt.Laly Vincent learned counsel for the appellant vehemently submitted that the accused has admitted the transaction between the complainant and the accused, and the evidence of PW1 is sufficient to prove the transaction between the complainant and the accused, and the execution and issuance of the cheque. But according to the learned counsel, the learned Magistrate went wrong in holding that the complainant has not established its case beyond reasonable doubt, as they failed to examine the Managing partner one V.I.Yusuf. It is the further contention of the learned counsel that, as the accused has admitted the execution of the cheque, since Ext.P1 contained the signatures of both the partners, the trial court is wrong in its finding. 4. I have carefully considered the submissions of the learned counsel for the appellant and I have gone through the judgment impugned in this appeal. In the light of the 4 ## **Crl.A.No.1535 of 2009** contentions advanced by the learned counsel for the appellant and in the light of the findings of the court below in the impugned judgment, which are based upon the available materials and evidence on record and are referred to in the judgment, the question that emerges for consideration is whether the appellant has succeeded in making out a prima facie case in support of its challenge against the judgment in question. The specific case of the complainant is that towards the liability arose out of the sale transaction between the complainant and the accused, the accused issued Ext.P1 cheque. Whereas the case of the accused is that, Ext.P1 cheque is given as a security in blank form and no amount is due to the complainant, and the present complaint is filed after filling the said cheque without the consent of the accused. Admittedly, the evidence adduced by the complainant, to prove the transaction and the execution of Ext.P1 cheque, is that of PW1 who is the power of attorney holder of the 5 ## **Crl.A.No.1535 of 2009** complainant. At the time of giving the evidence, he was working as an accountant of the complainant firm. Neither in the complaint nor in the proof affidavit, there is any specific case for PW1 that he has direct knowledge with respect to the transaction which covers Ext.P1 cheque. When PW1 was examined, it appears that he had deposed before the court that the affairs of the complainant firm was being managed by the Managing partner, viz., V.I.Yusuf and he had also admitted that the said Yusuf has no difficulty to come to the court and to give evidence. During the cross examination of PW1, it is stated that, as evident from his deposition, which is extracted in paragraph 9 of the impugned judgment, that, “വ�ദ�സ�പനത�ല�ക�ള payments പപത�കള നടത�യ�ര�നത� Johnson-ന� കകയ���ണ�. ഈ case-ന� 4 cheque-കള എന�ക� തനത� Johnson ആണ�.” On the basis of the above evidence of PW1, the learned Magistrate has found that PW1 has no direct knowledge or transaction with the accused and the cheque in question, according to PW1, was 6 ## **Crl.A.No.1535 of 2009** handed over by the accused to one Johnson. The said Johnson is also not examined in the present case. So the evidence of PW1 is not sufficient to prove the transaction as well as the execution of the cheque. Learned counsel for the appellant submitted that the power of attorney holder is competent to depose on behalf of the complainant. No dispute about that preposition but he can depose only with respect to the facts which is within his knowledge. In the present case, even according to him, the affairs of the complainant's firm are managed by one Yusuf and the cheque in question was handed over to one Johnson and the said Johnson had handed over the cheque to PW1 and hence the evidence of PW1 is not sufficient to prove the transaction for which the cheque in question was allegedly issued and his evidence is also not satisfactory to prove the execution of the cheque. If that be so, according to me, the learned Magistrate is fully correct in his finding that the complainant has failed to prove the transaction and 7 ## **Crl.A.No.1535 of 2009** execution of the cheque. According to me, the said findings are supported by the evidence and materials on record. The complainant has miserably failed to prove the original transaction and the execution of the cheque. In this case, according to me, in the light of defence taken and in view of the facts and circumstances involved in the case, positive evidence regarding the transaction and the execution of the cheque are absolutely inevitable but the complainant has miserably failed in this regard. Therefore, the findings of the court below and the judgment sought to be impugned cannot be treated as perverse or illegal. 5. In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The 8 ## **Crl.A.No.1535 of 2009** appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence.” The appellant in the present case has miserably failed to make out exceptional cases or compelling reasons to interfere with the order of acquittal recorded by the trial court. Hence, the appellant has not succeeded in making out a prima facie case in support of its challenge against the impugned judgment. Therefore, I find no merit in this appeal. Accordingly, the same is dismissed. **V.K.MOHANAN, Judge** ami/