C.P. Unni v. Sulochana and 4 others and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938** **Crl.Rev.Pet.No. 1152 of 2006 ( ) ---------------------------------** **CRL.APPEAL. 466/2001 of SESSIONS COURT, THALASSERY** **CC 743/1998 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-II, KANNUR** **REVISION PETITIONER/APPELLANT/ACCUSED::** **---------------------------------------** **C.P. UNNI, S/O. VELU, CHERUPARAMBATH HOUSE, THIROORANGADI, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE::** **---------------------------------------------** **1. SULOCHANA AND 4 OTHERS, REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, M. ARAVINDAN, S/O. APPUKUTTY, ERIPURAM, PAYANGADI, KANNUR.** **2. THE STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **R1 BY ADVS. SMT.T.S.MAYA SMT.K.B.SUJATHA R2 BY PUBLIC PROSECUTOR SMT.LISHA M.G.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DSV/1/10/16** ## **P.D. RAJAN, J. -------------------------------Crl. Rev. Pet. No.1152 of 2006 ---------------------------------Dated this the 25[th] day of July, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.466 of 2001 of the Sessions Court, Thalassery. He was the accused in C.C. No.743 of 1998 before the Judicial First Class Magistrate Court-II, Kannur for the offence punishable under Sec.138 of the Negotiable Instruments Act (NI Act for short). The learned Magistrate convicted the accused under Sec.138 NI Act and sentenced him to simple imprisonment for three months. Against that, accused preferred Criminal Appeal before the Sessions Court, Thalassery, where the learned Sessions Judge, dismissed the appeal. Being aggrieved by that, the accused preferred this Revision Petition. 2. The complainant's case is that, in the year 1996, accused promised to arrange employment to the complainant’s son and his brother in gulf countries and as per the promise, the complainant paid Rs.1,40,000/- Crl. Rev. Pet. No.1152 of 2006 2 (Rupees one lakh forty thousand only) to him. When he failed to arrange job, the complainant approached the revision petitioner, at that time he issued a cheque for Rs.1,50,000/- (Rupees one lakh fifty thousand only) drawn on Tirurangadi Service Co-operative Bank ltd. When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the amount by giving a notice in writing. Even after the notice, there was no repayment. In the circumstance, he filed a complaint before the Judicial First Class Magistrate Court-II, Kannur. During the pendency of the complaint, the complainant died and his legal representatives were impleaded as additional complainants. Subsequently the legal representatives executed a power of attorney to the brother of the deceased. To substantiate the allegation, the power of attorney holder was examined as PW1 and Exts.P1 to P6 were marked as documentary evidence. The Postman, Tirurangadi Post Office was examined as PW2. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He Crl. Rev. Pet. No.1152 of 2006 3 did not adduce any defence evidence. 3. Heard both sides and perused the oral and documentary evidence adduced in the trial court. It appears that both the courts below considered and appreciated the evidence properly. Both courts have the impression that relevant factors in favour of the accused were properly considered and the defence evidence advanced by the revision petitioner is unsustainable since the evidence of PW1 with regard to the transaction is from his direct knowledge. Many factors which have been considered in favour of the accused were properly analysed and there is no omission with regard to the points highlighted by the revision petitioner. 4. The learned counsel appearing for the revision petitioner contended that the power of attorney holder had no knowledge regarding the transaction. More over, the legal representatives were not impleaded as parties. Therefore, the evidence of PW1 is unbelievable and the sentence imposed by the courts below is excessive. He relied the decision of the Apex Court in **A.C. Narayanan v. State of Maharashtra [2013 (4)** Crl. Rev. Pet. No.1152 of 2006 4 ## **KLT 21 (SC)].** 4. In reply, the learned counsel appearing for the 1[st] respondent submitted that the above decision is not applicable in this case since the above case is filed by the power of attorney holder of the complainant. Here, after filing the complaint the complainant died and legal representatives impleaded the power of attorney who has direct knowledge about the transaction. 5. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the Crl. Rev. Pet. No.1152 of 2006 5 possibility of another view on a point is not a ground for interpreting with the above power. 6. In this context, I have examined whether any illegality has been committed by the courts below. This position was discussed by the larger Bench of the Supreme Court in **A.C. Narayanan v. State of Maharashtra [2013 (4) KLT 21 (SC)** , wherein held the principle as follows: "25. Similar substantial questions were raised in the appeal arising out of S.L.P (Crl.) No. 2724 of 2008, which stand answered as above. Apart from the above questions, one distinct query was raised as to whether a person authorized by a Company or Statute or Institution can delegate powers to their subordinate/others for filing a criminal complaint? The issue raised is in reference to validity of sub -delegation of functions of the power of attorney. We have already clarified to the extent that the attorney holder can sign and file a complaint on behalf of the complainant -payee. However, whether the power of attorney holder will have the power to further delegate the functions to another person will completely depend on the terms of the general power of attorney. As a result, the Crl. Rev. Pet. No.1152 of 2006 6 authority to sub -delegate the functions must be explicitly mentioned in the general power of attorney. Otherwise, the sub -delegation will be inconsistent with the general power of attorney and thereby will be invalid in law. Nevertheless, the general power of attorney itself can be cancelled and be given to another person. 26. While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner: (i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent. (ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. (iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding Crl. Rev. Pet. No.1152 of 2006 7 the transactions cannot be examined as a witness in the case. (iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. (v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person. AC Narayanan 2013(4) KLT 21. But the learned counsel appearing for the 1[st] respondent submitted that that was a case in which the power of attorney holder filed the complaint. Here after filing the complaint power of attorney was executed by the legal heirs and that possession is not binding. 7. In the instant case, the complaint was filed by one Kumaran the brother of PW1. After filing this Crl. Rev. Pet. No.1152 of 2006 8 complaint, on 31.01.1999 the complainant died and his wife filed Criminal M.P. No.4379 of 1999 for impleading legal representatives which was allowed by the trial court, and they were impleaded as additional complainants 2 to 6. Subsequently, the additional respondents authorised PW1, the brother of the complainant who was the eye witness to the transaction to depose the facts before court. Therefore, the position is clear that after filing a complaint, if the complainant died and the power of attorney holder has direct knowledge with regard to the transaction, that evidence is admissible. The trial court marked the power of attorney as Ext.P1. The evidence of PW1 shows that he has direct knowledge with regard to the transaction. It is an admitted fact that the complainant Kumaran is the brother of the power of attorney holder and he died on 31.01.1999. Subsequently, his wife and children executed Ext.P1 power of attorney in favour of PW1. The accused received Rs.1,40,000/- from Kumaran for arranging Visa for his brother and his son, but the accused failed to arrange Visa as agreed. The complainant demanded the Crl. Rev. Pet. No.1152 of 2006 9 amount, then the accused issued Ext.P2 cheque. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P3 is the dishonour memo. Ext.P4 is the intimation. The complainant demanded the amount by issuing Ext.P5 notice, but that notice was returned as unclaimed. Ext.P6 is the unclaimed notice. PW2 Postman deposed that he properly served notice but the accused/ revision petitioner was not found there, so it was returned to the complainant. 8. Analysing the evidence it is clear that when Ext.P1 was presented for encashment it was dishonoured for the reason of funds insufficient. Proper notice as stated under Sec.138 NI Act was made by him and there was no payment. Therefore, a statutory presumption under Sec.139 can be drawn in favour of the holder of the cheque. Apex Court in **Hiten P.Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16]** held that the burden was on the appellant (accused) to disprove the presumptions under Secs.138 and 139 of the NI Act. Apex court relied its earlier decision in **Standard Chartered Bank and** **Another v. Custodian and Another [ (2000) 6 SCC** Crl. Rev. Pet. No.1152 of 2006 10 **427]** in the above case. 9. What is seen from the defence evidence adduced in the trial court is relevant. While questioning he deposed that in the year 1995, there was a financial transaction of Rs.50,000/- with one Manoharan who is an electrician and he agreed to pay some interest. At that time he had issued a signed cheque as security to Manoharan. Even after payment of the amount, Manoharan retained that cheque and subsequently it was entrusted to Kumaran and foisted a false case. From the evidence of the revision petitioner, it is clear that his story is unbelievable. He failed to examine the said Manoharan and no questions were asked about this fact while cross examination of PW1. In the absence of such evidence, the contention advanced by the revision petitioner is unsustainable. Apex court in **Rangappa v. Sri. Mohan [2010 (11) SCC 441]** held that what courts have to consider is whether the ingredients of the offence enumerated in S.138 have been met and if so, whether accused was able to rebut the statutory presumption contemplated under Sec.139 of the NI Act. It appears Crl. Rev. Pet. No.1152 of 2006 11 that he failed to rebut the presumption under Sec.139 of NI Act. The trial court rightly convicted the accused which was confirmed by the appellate court. I find no illegality or irregularity in the above findings. Considering the nature of offence and the circumstances under which it was committed, the sentence is modified as follows. “ Revision petitioner is sentenced to simple imprisonment for two months and pay the cheque amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) as compensation in default, simple imprisonment for three months. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence failing which the Magistrate shall issue non bailable warrant forthwith.” ## Sd/- **P.D. RAJAN, JUDGE** /True Copy / P.A. To Judge NS/26/07/2016