HDFC Bank Ltd. v. Biju Chacko Eramangalathu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST** ## **AGRAHAYANA, 1945** ## **CRL.L.P. NO. 518 OF 2023** **AGAINST THE JUDGMENT DATED 23.09.2022 IN ST 831/2018 OF** ## **JMFC, KALAMASSERY** ## **PETITIONER/COMPLAINANT:** **HDFC BANK LTD HAVING ITS REGISTERED OFFICE AT HDFC HOUSE, SENAPATI BAPAT MARG, LOWER PAREL (WEST) MUMBAI, REPRESENTED BY ITS MANAGER MR. JUFIN GEORGE, PIN – 400013.** **BY ADVS. B.J.JOHN PRAKASH P.PRAMEL COLIN ALEX SOORAJ M.S.** ## **RESPONDENT/ACCUSED:** **BIJU CHACKO ERAMANGALATHU, AVOLY, MUVATTUPUZHA, NEAR VILLAGE OFFICE, AVOLY, MUVATTUPUZHA, PIN – 686670. BY ADVS. Santhosh Mathew ARUN THOMAS VEENA RAVEENDRAN ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL SHINTO MATHEW ABRAHAM MATHEW NEVIN THOMAS KARTHIK RAJAGOPAL KURIAN ANTONY MATHEW** ## **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR** **ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.L.P.No.518 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.L.P. No.518 of 2023 ----------------------------------------------------------Dated this the 22[nd] day of November, 2023** ## **O R D E R** The petitioner filed S.T.No.831 of 2018 alleging commission of an offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act) by the respondent. The Judicial Magistrate of the First Class, Kalamassery, after trial, acquitted the accused as per the judgment dated 23.09.2022. The petitioner seeks leave to file appeal against the said judgment. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 3. While the learned counsel for the petitioner submits that there exists _prima facie_ reasons for filing an appeal for, the findings rendered by the trial court are against facts and law, the learned counsel for the respondent vehemently opposes the petition. It is contended that the respondent was acquitted finding that the very institution of 3 Crl.L.P.No.518 of 2023 the complaint was illegal. When the court below held that PW1, who instituted the complaint, did not have valid power to do so and he had no knowledge about the transaction in question and also execution of the cheque, there was absolutely no scope for an appeal. In the view of the learned counsel for the respondent, leave to file an appeal in this case is out of question. 4. The learned counsel for the petitioner by placing reliance on **State of Maharashtra v. Sujay Mangesh Poyarekar [(2008) 9 SCC 495]** submitted that at the stage of granting leave, the court is not expected to consider correctness or not of the findings in the impugned judgment and what is required is only whether the petitioner has made out arguable points for challenging the impugned judgment. In the above decision, it was held that in terms of Section 378(3) of the Code, an appeal can be registered and heard on merits by the High Court only after leave has been granted. In deciding whether or not leave should be granted, the High Court must apply its mind, consider whether a 4 Crl.L.P.No.518 of 2023 prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. Also, it was held that it cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial Court must be allowed by the appellate Court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the Court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial Court could not be said to be `perverse' and, hence, no leave should be granted. The Apex Court further observed that the principle of right to first appeal lies in the doctrine of human fallibility that “Men are fallible” and “Judges are also men”. It is keeping in view the said object that the principle has to be understood and applied. The further observations are that there is no inviolable rule that no leave should be refused by the appellate Court against an 5 Crl.L.P.No.518 of 2023 order of acquittal recorded by the trial Court. Only that, in such cases, the appellate Court must consider the relevant materials, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial Court should not be disturbed. Where there is application of mind by the appellate Court and reasons in support of such view are recorded, the order of the Court may not be said to be illegal or objectionable. At the same time, if arguable points have been raised, if the material on record discloses deeper scrutiny and re-appreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits. 5. The learned counsel for the respondent invited my attention to **Central Bank Ltd., Perumanoor Branch v. Victor Jins [2023 SCC OnLine Ker.6898]** in order to fortify his contention that leave to appeal is liable to be refused if the power of attorney, who filed the complaint representing the complainant company, was found to be 6 Crl.L.P.No.518 of 2023 incompetent. Of course, in the said case this Court on holding that PW1, who tendered evidence on behalf of the complainant, failed to state the details of the transaction and the particulars concerning execution of the cheque, held that the order of acquittal was absolutely correct. Accordingly, leave to appeal was refused. 6. The evidence of PW1 in this case is not of the same nature. He has stated about the execution of Ext.P1. Whether he is competent to represent the company is a question to be decided on the basis of his oral testimony, Ext.P1 and other attending circumstances. At this stage, it is not able to go into those aspects in detail. 7. From the impugned judgment, it is seen that the competency of PW1 to represent the complainant-company was found against. Whether PW1 was duly authorised was considered by the court below in detail in the light of the provisions of law and precedents. When the petitioner contends that the said findings are against fact and law, in my view there arise arguable points. Therefore, the 7 Crl.L.P.No.518 of 2023 petitioner is entitled to get leave to appeal. The petition is therefore allowed and leave is granted to file the appeal. **Sd/P.G. AJITHKUMAR, JUDGE** dkr 8 Crl.L.P.No.518 of 2023 ## **APPENDIX OF CRL.L.P. 518/2023** **PETITIONER ANNEXURES ANNEXURE-A1 THE CERTIFIED COPY OF THE JUDGEMENT DATED 23.09.2022 IN S. T. NO. 831 OF 2018 ANNEXURE-A2 THE TRUE COPY OF THE SANCTION LETTER DATED 24.03.2016 FOR CASH CREDIT FACILITY OF RS. 1,00,00,000/- (RUPEES ONE CRORE ONLY) ANNEXURE-A3 TRUE COPY OF BOARD RESOLUTION DATED 27.10.2020 AND POWER OF ATTORNEYS**