Kerala State Poultry Development Corporation Ltd. v. Jojan Mathew and State of Kerala

**CRL.A.Nos.234, 235** **& 236 of 2005** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **CRL.A.No.234 OF 2005** **AGAINST THE JUDGMENT IN CC 423/2002 DATED 31-07-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V (SPECIAL COURT-MARKLIST CASES) THIRUVANANTHAPURAM** ## **APPELLANT/COMPLAINANT:** **THE KERALA STATE POULTRY DEVELOPMENT CORPORATION LTD., PAULTRY COMPLEX HATCHERY UNIT, KUDAPPANAKUNNU, THIRUVANANTHAPURAM-HAVING ITS REGISTERED OFFICE AT PETTAH,, TRIVANDRUM,REPRESENTED BY ITS MANAGING DIRECTOR DR.M.SURESHKUMAR, S/O.G.MADHAVAN, AGED 51 YEARS, RESIDING AT “SURABHI”, PETTAH, TRIVANDRUM, DULY AUTHORISED AND EMPOWERED TO REPRESENT THE COMPLAINANT BY VIRTUE OF THE ARTICLES OF ASSOCIATION, TRIVANDRUM-24 OF THE COMPANY** **BY ADV. SRI.R.S.KALKURA** ## **RESPONDENTS/ACCUSED, STATE:** **1 JOJAN MATHEW AGED 47 YEARS S/O.V.G.MATHEW, VETTICAD HOUSE, KERALADITYAPURAM, POWDIKONAM P.O., (VIA)MANNATHALA, THIRUVANANTHAPURAM. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SMT.LIGEY ANTONY R1 BY ADV. SRI.D.SAJEEV R2 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2020, ALONG WITH CRL.A.235/2005, CRL.A.236/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.Nos.234, 235** **& 236 of 2005** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF JUNE 2020/29TH JYAISHTA, 1942** ## **CRL.A.No.235 OF 2005** **AGAINST THE JUDGMENT IN CC 424/2002 DATED 31-07-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V, (SPECIAL COURT-MARKLIST CASES), THIRUVANANTHAPURAM** ## **APPELLANT/COMPLAINANT:** **THE KERALA STATE POULTRY DEVELOPMENT CORPORATION LTD., POULTRY COMPLEX HATCHERY UNIT, KUDAPPANAKUNNU, THIRUVANANTHAPURAM-HAVING ITS REGISTERED OFFICE AT PETTAH, TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR, DR.M.SURESHKUMAR, AGED 51 YEARS, RESIDING AT “SURABHI”, PETTAH, TRIVANDRUM DULY AUTHORIZED AND EMPOWERED TO REPRESENT THE COMPLAINANT BY VIRTUE OF THE ARTICLES OF ASSOCIATION, TRIVANDRUM-24 OF THE COMPANY.** ## **BY ADV. SRI.R.S.KALKURA** ## **RESPONDENT/ACCUSED, STATE:** **1 JOJAN MATHEW AGED 47 YEARS, S/O.V.G.MATHEW, VETTICAD HOUSE, KERALADITYAPURAM, POWDIKONAM P.O., (VIA) MANNATHALA, THIRUVANANTHAPURAM. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY ADV. SMT.LIGEY ANTONY R1 BY ADV. SRI.D.SAJEEV R2 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2020, ALONG WITH CRL.A.234/2005, CRL.A.236/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.Nos.234, 235 & 236 of 2005** **3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF JUNE 2020/29TH JYAISHTA, 1942** **CRL.A.No.236 OF 2005** **AGAINST THE JUDGMENT IN CC 425/2002 DATED 31-07-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V (SPECIAL COURT FOR MARKLIST CASES) THIRUVANANTHAPURAM** ## **APPELLANT/COMPLAINANT:** **THE KERALA STATE POULTRY DEVELOPMENT CORPORATION LTD., POULTRY COMPLEX HATCHERY UNIT, KUDAPPANAKUNNU, THIRUVANANTHAPURAM HAVING ITS REGISTERED OFFICE AT PETTAH, TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR DR.M.SURESHKUMAR, AGED 51 YEARS, RESIDING AT SURABHI, PETTAH, TRIVANDRUM -24, DULY AUTHORISED AND EMPOWERED TO REPRESENT THE COMPLAINANT BY VIRTUE OF THE ARTICLES OF ASSOCIATION OF THE COMPANY.** ## **BY ADV. SRI.R.S.KALKURA** ## **RESPONDENTS/ACCUSED, STATE:** **1 JOJAN MATHEW S/O V.G.MATHEW, AGED 47 YEARS, VETTICAD HOUSE, KERALADITYAPURAM, POWDIKONAM P.O., (VIA) MANNATHALA, THIRUVANANTHAPURAM.** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1-2 BY SR. PUBLIC PROSECUTOR SRI.B.JAYASURYA R1 BY ADV. SRI.D.SAJEEV** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2020, ALONG WITH CRL.A.234/2005, CRL.A.235/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.Nos.234, 235** **4** **& 236 of 2005** ## **JUDGMENT** ## **[ CRL.A.234/2005, CRL.A.235/2005, CRL.A.236/2005 ] Dated this the 19th day of June 2020** These appeals are filed against the common judgment dated 31.7.2004 in C.C.Nos.423/2002, 424/2002 and 425/2002 on the file of the Judicial First Class Magistrate Court V, (Special Court for Mark list Cases), Thiruvananthapuram. In all these cases, the appellant is the complainant, and the 1[st] respondent is the accused. These three cases were filed by the appellant against the 1[st] respondent for prosecuting him under Section 138 of the Negotiable Instruments Act (for short 'the N.I Act'). The case was tried together as per the request of the complainant, and hence after conducting a joint trial, a common judgment was delivered by the trial court. Since all these three cases are filed against the common judgment, I am disposing of these appeals by a common judgment. (Hereinafter the parties are referred in accordance to their rank before the trial court). 2. The Kerala State Poultry Development Corporation Ltd. Thiruvananthapuram is the complainant in all the three cases. **CRL.A.Nos.234, 235** **& 236 of 2005** **5** The complainant is an autonomous body working under the Government of Kerala and engaged in various activities of Poultry Development. Its head office is at Pattom, and its hatchery unit is at Kudappanakkunnu. One Mr.Sudhakaran, the Finance Manager of the Corporation, was authorised to represent the Corporation in all its legal matters for prosecuting and defending the case on behalf of the complainant. The complainant is engaged in the business of selling one-day-old broiler chicks to persons who are conducting poultry farms. The accused is one of its customers who had been purchasing chicks on a credit basis from the complainant. There exists a continuing transaction between the complainant Corporation and the accused. 3. According to the complainant, the accused issued cheques towards the amount due to the complainant in connection with the purchase of chicks. Those cheques are involved in these cases. In C.C.No.423/2002, three cheques for Rs.21,000/-, Rs.16,800/- and Rs.18,900/- are involved. Ext.P2 to P4 are the cheques involved in C.C.No.423/2002. In C.C.No.424/2002 involves Ext.P10 cheque for Rs.21,000/-. C.C.No.425/2002 involved three cheques issued for Rs.14,000/each, which is marked in the case as Exts.P15 and P17. **CRL.A.Nos.234, 235** **& 236 of 2005** **6** According to the complainant, when these cheques were presented by the complainant Corporation for collection, the same was dishonoured with an endorsement 'funds insufficient'. After that, statutory notice was issued to the accused, intimating the factum of dishonour and demanding payment covered by these cheques. The accused failed to comply with the demand made by the complainant, and consequently, the above three cases were filed. 4. The joint trial was ordered in this case based on an application filed by the complainant. Evidence in all three cases was taken in C.C.No.423/2002. To substantiate the case, PW1 was examined on the side of the complainant. Exts.P1 and P22 are the documents marked on the side of the complainant. Exts.D1 to D3 marked on the side of the defence. 5. Ongoing through the evidence and the documents, the trial court found that the accused is not guilty of the offence under Section 138 of the N.I Act. Hence the accused was acquitted in all the three cases under Section 255(1) Cr.P.C. Aggrieved by the acquittal order, these three appeals were filed by the complainant. 6. The learned counsel for the appellant submitted that the acquittal order passed by the learned Magistrate is per se **CRL.A.Nos.234, 235** **& 236 of 2005** **7** illegal. According to the counsel, execution, handing over the cheques and other formalities to establish an offence under Section 138 of the N.I Act is proved by the prosecution. The counsel for the appellant submitted that even though PW1 is not conversant with the transaction involved in this case, the execution itself is admitted by the accused in this case as per Ext.P9 reply notice. Therefore, the counsel submitted that here is a case where the complainant was able to prove the offence under Section 138 of the N.I Act. Thus, the acquittal order is per se illegal; this is the contention of the complainant. 7. The learned counsel for the accused submitted that the learned Magistrate after going through the evidence and the documents, acquitted the accused. According to the counsel, the execution of the cheques is not proved in this case. Admittedly, PW1, the power of attorney holder, did not know of the transaction. No other evidence is available in this case. The counsel for the accused submitted that the complainant cannot rely on Ext.P9 reply notice of the accused to establish their case. Moreover, the counsel also submitted that even in Ext.P9 reply notice, there is no admission that the cheques involved in this case were issued for proper consideration. 8. After considering the contentions, the point for **CRL.A.Nos.234, 235** **& 236 of 2005** **8** consideration in these appeals is whether an offence under Section 138 N.I Act is made out. 9. Admittedly, in this case, the only evidence available is that of PW1, who is the power of attorney holder of the complainant establishment. PW1 was the power of attorney holder at the time when he gave evidence before the Court. PW1 admitted in his cross-examination that the business with the accused had been continuing for years, and he did not know when precisely the transaction has begun. PW1 further stated during his period; there was no transaction with the accused. He admitted that he could not say whether the cheques were signed by the accused without verifying the records. He learned that the cheques belonged to the accused by verifying the records in his office. Hence from the evidence of PW1, it is conclusively proved that PW1 has no direct knowledge regarding the transaction between the complainant and the accused, and he has no direct acquaintance about the execution of the cheques. PW1 deposed in cross-examination that he did not even know the accused, and there are employees in his office who maybe knowing the accused. 10. The question is whether this Court can reverse the acquittal order based on the evidence of PW1. The principle **CRL.A.Nos.234, 235** **& 236 of 2005** **9** regarding the admissibility of the evidence by a power of attorney holder is considered in **Shaji v. Raghunandanan [1999(3) KLT SN Case No.85 C.No.** 82]. The relevant portion is extracted hereinbelow: "The permission to appear through a power of attorney is only for prosecuting the complaint and for appearing on his behalf. As regards evidence in the case, the rule is that the best evidence must be let in. If the evidence of the complainant is required for proving any point, the power of attorney cannot substitute him as a proxy and give evidence on his behalf, or speak to matters which are not within his personal knowledge. It will be open for the prosecution to examine the power of attorney as a witness, but that does not mean that he is competent to speak to all the facts relating to the case. If he gives evidence, the Magistrate will examine whether he is really competent to give evidence on the points and the evidence is acceptable. Notwithstanding the fact that the case is being prosecuted by the power of attorney, it will be open to the complainant to come and give evidence also." 11. Here, in this case, initially, one Sudhakaran was the power of attorney holder. He cited as a witness in the complaint. But he was not examined in this case. The evidence available in this case is the sole testimony of PW1. PW1 produced Ext.P22 computer print out of the ledger account of the accused. According to PW1 he collected this information from the office records. The lower Court found that Ext.P22 ledger account of the accused maintained by the complainant office will not be helpful to the complainant's case. I think, the **CRL.A.Nos.234, 235** **& 236 of 2005** **10** findings of the learned Magistrate is correct. The total consideration covered by the cheques is more than the amount due to the complainant as per Ext.P22 ledger account. Ext.P22 computer print out would not give any details regarding the transaction covered by the cheques in question. The learned counsel for the appellant submitted that there is some entry regarding the transaction in Ext.P22. The question is whether Ext.P22 is admissible. It does not conform with the conditions required under Section 65B of the Indian Evidence Act, which deals with the admissibility of the electronic records. Therefore, as rightly found by the learned Magistrate, Ext.P22 can not be considered as a proper record showing the ledger account of the accused. 12. In this case, the accused denied the execution of the cheques. He even denied the signature in those cheques while cross-examining PW1. PW1 stated that they are maintaining ledger in their office, and ongoing through the ledger, the number of cheques and the amount due can be seen. PW1 further stated that there is no difficulty in producing the ledgers. But instead of producing the ledgers, Ext.P22 was produced, which is not acceptable. According to the learned counsel for the appellant, those documents were not produced **CRL.A.Nos.234, 235** **& 236 of 2005** **11** because all those data were transferred to the computer. There is no case to the complainant that the original records are destroyed. When there are documents available with the complainant to prove the transaction, and the same is not produced before the Court, an adverse inference can be taken against the complainant under Section 114(g) of the Evidence Act. 13. After going through the entire evidence and the documents produced by the complainant in this case, along with the findings of the learned Magistrate, I think there is nothing to interfere in an appeal against acquittal. The jurisdiction of this Court to interfere in an appeal against acquittal is limited. Even if another view is possible, this Court cannot interfere in an appeal against acquittal. In the light of the facts and circumstances of the case, I think there is no merit in these appeals. Hence these Criminal Appeals are dismissed, confirming the impugned judgment. Sd/- **P.V.KUNHIKRISHNAN JUDGE** ab