Jiffas v. State of Kerala and M/S Jasspack Services Pvt. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934 Crl.Rev.Pet.No. 2212 of 2012 -------------------------------- AGAINST THE JUDGMENT IN CRA.658/2011 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM AGAINST THE JUDGMENT IN CC.7/2010 of JUDICIAL FIRST CLASS MAGISTRATE-I,KOCHI REVISION PETITIONER/APPELLANT/ACCUSED JIFFAS AGED 35 YEARS S/O. M.A. KUNJU MOIDHEEN, PROPRIETOR M/S. ISLAND CONTAINER CARRIERS 25/1896, BINNY LTD. BRISTOW ROAD, KOCHI. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN RESPONDENTS/COMPLAINANT/STATE -----------/------------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031. 2. M/S. JASSPACK SERVICES PVT. LTD. 24/168, PERUMBAVOOR JETTY ROAD WILLINGDON ISLAND KOCHI PIN-682003 REPRESENTED BY ITS MANAGING DIRECTOR MOHAMMED ASHRAF. R2 BY ADV. SRI.K.N.SIVASANKARAN R2 BY ADV. SRI.SUNIL SHANKER R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HARILAL, J. == = = = == = = = = == = = = = = == = == CRL.R.P.NO. 2212 of 2012 = = = == = = = == = = = = = == = = = = = = Dated this the 13[th] day of February 2013 ORDER The revision petitioner is the accused in C.C.No.7/2010 on the files of the Judicial First Class Magistrate-I, Kochi as well as the appellant in Crl.A.No.658/2011 on the files of the Additional Sessions Judge (Adhoc-I),Ernakulam. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act on a complaint filed by the second respondent. In trial, the complainant was examined as PW1 and Exts.P1 to P14(a) were marked for the 2[nd] respondent. The learned Magistrate found the accused/revision petitioner guilty under Section 138 of the Negotiable Instruments Act and convicted thereunder. He was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.One lakh under Section 138 of the Negotiable Instruments Act. In default of payment of fine, the Revision Petitioner shall undergo simple imprisonment for a further period of two months. The fine amount, if realised, shall be paid as compensation to the complainant under Section 357(1)(b) of the Cr.P.C. Though the CRRP 2212/2012 2 conviction and sentence passed by the trial court were challenged in appeal, the Appellate Court also confirmed the conviction and modified the sentence of imprisonment to imprisonment till the rising of the court and fine amount was enhanced to Rs.1,02,000/-. This Revision petition is filed challenging the concurrent findings of conviction and modified the sentence passed by the Appellate Court on various grounds. 2. I heard the learned counsel for the revision petitioner and considered the contentions advanced at the Bar. Though the revision is filed on various grounds challenging appreciation of evidence also, the learned counsel for the Revision Petitioner advanced a legal contention that PW1 who is the Managing Director of the company was not competent to file such a complaint without specific authorisation of the Company. No authorization enabling PW1 to represent the company was produced before the courts below and the same was overlooked by the courts below. He drew my attention to the discussions made by the trial court in paragraph 10 of the trial court judgment and discussions made by the Appellate Court in paragraph 8 of the appellate court judgment. The point which has been raised before me was elaborately considered in those paragraphs and rightly rejected by the courts below. The CRRP 2212/2012 3 company is the complainant and it is represented by its Managing Director Mohamed Ashraf in the instant criminal prosecution. But the Managing Director has not produced any authorisation to prove that the company has duly authorised him to file the said complaint. In the absence of document evidencing authorization, the Managing Director was not competent to file such a complaint, is the crux of the contention raised before me. It is true that neither memorandum of association nor any resolution authorising the Managing Director to file the complaint was produced in evidence. But let us see the bona fide of the said contention raised by the Revision Petitioner. The definite alternative defence contention put forward by the Revision petitioner in trial is that blank cheques were obtained from him by the Managing Director for and on behalf of the company as security towards another loan transaction of Rs.50,000/-, for which he indebted to the complainant and the same was duly paid off, but cheques which were issued as security for that transaction were seen misused for the purpose of filing complaint against the Revision Petitioner. Going by the said contention, it could be seen that the cheques in question were issued by the Revision Petitioner himself to the complainant, I am of the opinion that in view of the CRRP 2212/2012 4 said specific contention admitting the issuance of the questioned cheques to the Managing Director for and on behalf of the company, a further contention that the Managing Director has no competency to file such a complaint for and on behalf of the company for the dishonour of the very same cheques lacks bona fides. Secondly, pursuant to the dishonour of the cheque, the Managing Director for and on behalf of the company issued statutory lawyer notice and the receipt of the notice is evidenced by the acknowledgment and signed by the accused. But the accused neither sent a reply nor repaid the cheque amount. If the accused had a bonafide contention that the Managing Director was not competent or not authorised to proceed against him, certainly he could have sent a reply challenging the competency of Managing Director. Thirdly, the Revision Petitioner has a case that the Managing Director was not competent to file the complaint; but when the Managing Director was in the box, no question was put to him challenging his competency to file a complaint for and on behalf of the company. CRRP 2212/2012 5 Fourthly, in 313 statement also, the Revision Petitioner has not given any explanation challenging competency of PW1 Managing Director to file the complaint. In view of these four points, I am of the opinion that the courts below rightly rejected the contention challenging competency of the complainant to file this complaint. 3. Learned counsel for the Revision petitioner cited decisions in **Lakshmi Srinivas Savings & Chit Funds Syndicate PvtLtd. v. Bhojaran,[2007(2)KLJ 42]** , **M.M.T.C.Ltd. v. Medchl Chemicals & Pharma (P)Ltd. [2002 (1)SCC 234** , **Director, Maruti Foods and Forms Pvt.Ltd. v. Basanna Pattekar [2008 Crl.L.J.157] and Om Shakthi SC/ST and Minority Credit Co-Operative Society Ltd. v. M. Venkatesh** [ **2008 Crl.L.J. 998]** . By citing these decisions, the learned counsel for the Revision Petitioner contended that in a proceedings before court of law, a company can be represented by a person authorised by the Memorandum of Articles or by Resolution of the Company and no other person is allowed to represent the Company in a proceedings before court of law. This is a proposition which cannot be disputed. Decisions will not come into play to rescue the accused where bona fides of the contention itself is found lacking. But in the instant case, I am CRRP 2212/2012 6 of the opinion that these decisions have no application because there is no bona fides in the above contention which is seen raised at the fag end of the trial. In fact, the Revision Petitioner himself accepted competency of the Managing Director by issuing a blank signed cheque to him. Thereafter, as a defence, now he is challenging the competency of the complainant. Therefore, I find that considering the facts and circumstances of the instant case, the decisions cited by the learned counsel for the Revision Petitioner have no application at all. 4. Therefore, I am inclined to confirm the conviction and sentence imposed by the Appellate Court and dismiss the Revision Petition. 5. The learned counsel for the Revision Petitioner further submits that the Revision Petitioner is unable to pay compensation forthwith, and prayed for a reasonable time to pay the compensation. Having regard to the facts and circumstances of the case, nature and gravity of the offence and submission of the leaned counsel for the petitioner at the Bar, I am of the opinion that 4 months time can be granted to pay the CRRP 2212/2012 7 compensation and the same will meet the ends of Justice. I confirm the conviction. Sentence is also confirmed subject to time granted to pay the compensation. 6. Therefore, this Revision is liable to be dismissed subject to following terms: i) The Revision Petitioner/Accused shall pay a compensation of Rs.1,02,000/- to the second respondent/complainant within a period of four months from today. ii) He shall suffer imprisonment till rising of the court as ordered by the court below. iii) The Revision Petitioner shall surrender before the trial court to suffer the imprisonment after payment of compensation as ordered above on or before 12/6/2013, with sufficient proof thereof . iv) In default, the Revision Petitioner shall undergo default sentence as ordered by the Sessions Court. The Crl.Revision Petition is dismissed accordingly. ## **Sd/-** ## **K. HARILAL,JUDGE** ## **ks.** True copy CRRP 2212/2012 8 P.s.to Judge