Madana Mohanan Nair v. M.D. Vincent and State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 ``` ``` CRL.A NO. 1893 OF 2011 ``` ``` AGAINST THE JUDGMENT DATED 31.05.2010 IN ST 224/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS II, PALA ``` ``` Crl.L.P. 868/2011 OF HIGH COURT OF KERALA ``` ## `APPELLANT/COMPLAINANT:` ``` MADANA MOHANAN NAIR, RAGHAVAN NAIR, VENATTUMATTOM, ALANADU KARA, ALANADU P.O., BHARANAGANAM VILLAGE, MEENACHIL TALUK. ``` ``` BY ADV SRI.BABY THOMAS ``` ## `RESPONDENTS/ ACCUSED & STATE:` ``` 1M.D.VINCENT, MURIYADAN (H), CHEVOOR P.O., PIN 680 027, TRISSUR ``` ``` 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031. ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1893/2011 ``` ``` -:2:- ``` Dated this the 29[th] day of September,2023 ## **J U D G M E N T** The appellant questions the legality and correctness of the judgment passed by the Court of the Judicial First Class Magistrate-II, Pala, in S.T.No.224/2006, holding the first respondent/accused not guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, ‘N.I. Act’) and, thereby, acquitting him. ## **Brief facts:** 2. The appellant had filed the above complaint before the court below against the first respondent alleging that he had in discharge of a liability, in connection with a timber business, issued Ext P1 cheque in favour of the complainant. The cheque on presentation to the bank for collection, got ``` Crl.A.No.1893/2011 ``` ``` -:3:- ``` dishonoured as per Ext P2 memorandum due to ‘insufficient funds’ in the first respondent’s bank account. Even though the appellant had issued Ext P5 statutory lawyer notice to the first respondent, he failed to pay the demanded amount. Hence, the accused committed the above offence. ## **Trial** 3. The first respondent appeared and pleaded not guilty to the substance of accusation made against him. In the trial, the appellant was examined as PW1 and Exts P1 to P7 were marked in evidence. The first respondent was questioned under Section 313 of the Code of Criminal Procedure(Cr.P.C.) and he denied the incriminating circumstances put against him. The first respondent did not let in any defence evidence. ## **Trial Court judgment** 4. After analysing the materials on record, the learned Magistrate, by the impugned judgment, found ``` Crl.A.No.1893/2011 ``` ``` -:4:- ``` the first respondent not guilty for the offence under Section 138 of the N.I. Act, solely for the reason that there was no material to substantiate that the appellant was the proprietor of M/s Venattumattom Timbers(in short, ‘concern’) – the payee. It is assailing the said judgment, the appeal is filed. 5. Heard; Sri. Baby Thomas, the learned counsel for the appellant and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the second respondent – State. Even though notice has been served on the first respondent, there is no appearance for him. 6. The learned counsel appearing for the appellant vehemently argued that the learned Magistrate had gone wrong in concluding that there was no material to substantiate that the appellant was the proprietor of the above concern. The appellant had produced and marked Ext P7 series registration certificate issued under the Kerala Value Added Tax ``` Crl.A.No.1893/2011 ``` ``` -:5:- ``` Rules, 2005(in short, ‘Rules) and a certificate from the State Bank of Travancore in evidence, which prove that the appellant was the sole proprietor of the above concern. It is without adverting to the said documents, that the learned Magistrate has found that there was no evidence to hold that the appellant was the proprietor of the concern. The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in **Milind Shripad Chandurkar v. Kalim M. Khan and Anr** [2011 (1) KHC 751], to fortify his contention that Ext P7 was more than sufficient to prove that the appellant was the proprietor of the concern. Hence, he prayed that the appeal be allowed. 7. Is there or error in the any illegality impugned judgment? 8. The case of the appellant in the complaint was that the first respondent had purchased timber from him and in discharge of the liability had issued ``` Crl.A.No.1893/2011 ``` ``` -:6:- ``` Ext P1 cheque for an amount of Rs.1,27,500/-. But, the cheque got dishonoured due to insufficiency of funds in the first respondent’s bank account. The first respondent refused to pay the same, despite the receipt of Ext P5 statutory lawyer notice. 9. The learned Magistrate had framed five points in the impugned judgment. The first point was whether the complaint was properly instituted?. 10. The learned Magistrate, after analysing the materials on record, answered point No:1 against the appellant by finding that, since Ext P1 cheque was issued in favour of the concern and the complaint was filed by the appellant in his individual name, there was no material to prove that the appellant was the proprietor of the concern. The learned Magistrate relied on the decision of the Hon'ble Supreme Court in **Shankar Finance & Investments v. State of Andhra Pradesh and Anr** [(2008) 8 SCC 536], ``` Crl.A.No.1893/2011 ``` ``` -:7:- ``` wherein it is held that it is necessary that there should be averment in the complaint that the payee is a proprietorship concern and is represented by its proprietor. In view of the conspicuous absence of the said averment, the learned Magistrate dismissed the complaint. ## 11. In **Shankar Finance & Investments** (supra), ## the Hon'ble Supreme Court has observed as follows: “11. The next question is where a proprietary concern carries on business through an attorney holder, whether the attorney holder can lodge the complaint? The attorney holder is the agent of the grantor. When the grantor authorises the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder, and not by the attorney holder in his personal capacity. Therefore where the payee is a proprietary concern, the complaint can be filed: ( _i_ ) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the “payee”; ( _ii_ ) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and ( _iii_ ) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. xxxx xxxx xxxx” ``` Crl.A.No.1893/2011 ``` ``` -:8:- ``` ## 12. In **Milind Shripad Chandurkar** (supra), the Honourable Supreme Court has held as follows: “24. Thus, in view of the above, the law stands crystallised to the effect that a person can maintain a complaint provided he is either a 'payee' or 'holder in due course' of the cheque. 25. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to respondent no. 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc. Thus, in such a fact - situation, there would be no dearth of material which could have been produced by the ``` Crl.A.No.1893/2011 ``` ``` -:9:- ``` appellant to show that he was the sole proprietor of the said firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings.” 13. In the case at hand, indisputably, the appellant has not stated in the complaint that he was the proprietor of the concern or has filed the complaint for and on behalf of the concern. 14. Nonetheless, the appellant had produced Ext P7 series documents, which unambiguously state that the appellant was the sole proprietor of the concern. Unfortunately, the learned Magistrate has missed out the said documents and has not given any reason to discredit the said piece of evidence. 15. In **Milind Shripad Chandurkar** (supra), the Honourable Supreme Court has held that, even if there is an averment in the complaint/affidavit that the person is proprietor of the concern, the same is ``` Crl.A.No.1893/2011 ``` ``` -:10:- ``` insufficient, and there has to be cogent material to corroborate the statement. 16. On a re-appreciation of the materials on record and the impugned judgment, particularly the fact that the learned Magistrate has failed to advert to Ext P7 series certificates, I am of the view that the learned Magistrate has committed a serious error which has resulted in failure of justice. 17. This Court is remindful of the fact that the appeal is preferred against an order of acquittal. 18. It is trite, that an Appellate Court should be slow to interfere with an order of acquittal. Only when the conclusion arrived by the Trial Court is patently illegal and manifestly erroneous should the Appellate Court step in and interfere with such an order. 19. In **Jafarudeen vs. State of Kerala** [2022 KHC 6449],the Honourable Supreme Court, after referring to all the earlier judgments on the point, has ``` Crl.A.No.1893/2011 ``` ``` -:11:- ``` laid down the broad principles to deal with an appeal against an order of acquittal. It is profitable to extract the relevant portion, which declares the law thus: ## “ _25. Scope of Appeal filed against the Acquittal:_ While dealing with an appeal against acquittal by invoking S.378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal.Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. ” 20. Recently, the Honourable Supreme Court in **Rupesh Manger (Thapa) vs. State of Sikkim** (MANU/SC/1014/2023) has observed that an Appellate Court may reverse an order of acquittal, if it is so perverse and is not a plausible one. Merely because another view is possible, on re-appreciation of the evidence, the Appellate Court shall not disturb the finding of acquittal and substitute its own findings to ``` Crl.A.No.1893/2011 ``` ``` -:12:- ``` convict the accused. 21. On a comprehensive re-appreciation of the facts, materials on record and the law referred to above, this Court is of the definite view that the omission on the part of the court below in not adverting to Ext P7 series certificates and not giving any reasons to discard the said documents, which actually establishes that the appellant was the proprietor of the concern, I hold that the matter warrants to be re-considered by the court below, to afford the appellant an opportunity to substantiate that he was the proprietor of the concern. The said course would meet the ends of justice and would not cause prejudice to the first respondent. Accordingly, by invoking the powers of this Court under Section 386(a) of the Cr.P.C., I am inclined to reverse the order of acquittal and direct the court below to conduct a further enquiry in the matter and decide the complaint, ``` Crl.A.No.1893/2011 ``` ``` -:13:- ``` in accordance with law. In the result, - (i) The appeal is allowed. - (ii) The impugned judgment passed by the court below is set aside. - (iii) The appellant and the first respondent are directed to appear before the court below on 30.10.2023. - (iv) The court below shall permit the appellant and the first respondent to let in further evidence for the purpose mentioned in the judgment. - (v) In case the first respondent does not appear on the date fixed by this Court, the court below shall initiate coercive proceedings to procure his presence. - (vi) The court below shall consider and dispose of S.T.No.224/2006, in accordance with law and as expeditiously as possible, untrammelled by any observations made in this judgment; but after ``` Crl.A.No.1893/2011 ``` ``` -:14:- ``` ## referring to the law on the point. Sd/- ## **C.S.DIAS,JUDGE** DST/29.09.23 //True copy// P.A.To Judge