M/S Classic Paints v. Manju M. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936** ## **Crl.L.P..No. 266 of 2014** **----------------------------------** ## **C.C.NO. 1084/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KOCHI** **--------------** ## **PETITIONER / COMPLAINANT :** **----------------------------------------------** **M/S. CLASSIC PAINTS, "THE MONARCH", 3RD FLOOR, P.T.USHA ROAD, P.B.NO. 1191, COCHIN, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, K.S.VIJAYAKUMAR, S/O. SEKHARA MENON.** **BY ADVS.SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO** **RESPONDENT / ACCUSED AND STATE :** **-----------------------------------------------------------** ## **1. MANJU M.,** **S/O.MAHADEVAN, MATTATHIL HOUSE, CHERUVARANAM, VARANAM P.O., CHERTHALA - 688 555.** ## **2. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **R2 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 14-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.266 of 2014 ------------------------------Dated this the 14[th] day of August, 2014.** ## **O R D E R** The petitioner, who is the complainant in C.C.No.1084/11, which is a case instituted alleging offence punishable under section 138 of the Negotiable Instruments Act against the 1[st] respondent, seeks leave of this Court to file an appeal against the judgment dated 21.6.2014 in C.C.No.1084/11 of the court of Judicial First Class Magistrate-1, Kochi, as the accused is acquitted. 2. The case of the complainant is that the complainant is a partnership firm which is engaged in the business of manufacturing and distribution of paints. The accused is running business in the name “M/s.Shanmugha Voir Works” and for his business, he purchased goods on credit from the complainant. Thus, according to the complainant, on 8.8.2010, the accused purchased paints **Crl.L.P.No.266 of 2014** 2 vide invoice no.l3365 for Rs.84,469/- and towards the payment of goods they purchased on credit, the accused issued Ext.P4 cheque, which when presented for encashment dishonoured stating that, 'exceeds arrangement'. According to the complainant, though a statutory notice was served on the accused, no payment was effected and therefore the accused has committed the offence punishable under section 138 of the NI Act. 3. With the above allegation, the complainant approached the court of Judicial First Class Magistrate-I, Kochi, and on receiving the complaint, instituted C.C.No.1084/11 and during the trial of the case, PW1 is examined from the side of the complainant and produced Exts.P1 to P7. No evidence either oral or documentary produced from the side of the accused. The trial court finally found that when the complaint itself has not been instituted properly, there is no question of considering the other ingredients in relation to section 138 of the NI Act. **Crl.L.P.No.266 of 2014** 3 Accordingly, the accused is found not guilty and thus acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that though the complaint was filed through one C.B.Kunjappan he was not available at the time of trial as he had quit the company. However, the power of attorney executed in his favour was available with the complainant. Therefore, the findings of the court below are incorrect. 6. I am unable to sustain the above contention. Admittedly, the complaint was filed through one C.B.Kunjappan as disclosed from the cause title of the impugned judgment. The learned Magistrate has specifically found in paragraph 6 that, the complaint filed on behalf of the partnership firm by one C.B.Kunjappan, **Crl.L.P.No.266 of 2014** 4 who is stated to be the Power of attorney of the complainant partnership, in his capacity as the Supervisor of the same. However, no such power of attorney has been produced before the court below. So, the trial court came into a conclusion that the person who filed the complaint on behalf of the partnership firm, cannot be seen to have been duly authorised to file the complaint. It is also found by the learned Magistrate that, PW1, the present power of attorney, with relation to whom Ext.P1 has been produced can be seem to be duly authorised to represent the partnership. However, he is not the power of attorney through whom the complaint has been filed. Thus following the decision in **Govind Ram Chanani V. Latha and another {2009 KHC 5557}** , the learned Magistrate has found that the facts involved in the said case squarely applicable in the present case as well. The person who filed the complaint had neither been a partner nor proprietor nor authorised agent to file complaint. It is also **Crl.L.P.No.266 of 2014** 5 found that the case of the complainant became more worse when PW1 was examined. According to PW1, the said Kunjappan was performing the same duties as he is now performing. PW1 has further stated during the chief examination that, he knew all the facts of the case, but the learned Magistrate has specifically found that at the time of cross examination of PW1, he has stated that all aspects of the case were handled by Kunjappan and that PW1 had only office duty during the relevant time. From the above discussion and the facts projected by the learned Magistrate in his judgment, it can be seen that it was not a properly constituted complaint and PW1 has no direct knowledge about the transaction. 7. In the light of the above discussion it can be seen that the learned Magistrate has properly considered the entire facts and circumstances involved in the case and after appreciating the evidence and materials on record, came to a proper conclusion and acquitted the accused. It **Crl.L.P.No.266 of 2014** 6 cannot be said that the said findings of the court below are either perverse or illegal so as to interfere in an appeal. 8. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.” Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of 7 ## **Crl.L.P.No.266 of 2014** the accused and to disturb the double presumption of innocence bolstered as per the judgment in question. 9. Therefore, I find no ground to grant special leave as prayed for, especially when the petitioner miserably failed to make out a prima facie case in support of his proposed challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed. Sd/- **V.K.MOHANAN, Judge.** ami/ //True copy// P.A.to Judge