Mulamoottil Consumer Credits Ltd v. A. Shamnad and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **CRL.A.No.544 OF 2008** **AGAINST THE JUDGMENT DATED 31-01-2007 IN S.T.NO.4614/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV (MOBILE),TVM.** ## **APPELLANT/COMPLAINANT:** **M/S.MULAMOOTTIL CONSUMER CREDITS LTD. A COMPANY REGISTERED UNDER COMPANIES ACT, WITH THE REGISTERED OFFICE AT T.C.9/1419 (1) TEMPLE ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM - 10 AND A BRANCH INTERNAL IS AT THIRUVANANTHAPURAM. THE PETITIONER IS REPRESENTED BY ITS ASSISTANT MANAGER AT THE ABOVESAID REGISTERED OFFICE, S.RAVEENDRAN NAIR, S/O SANKARA PILLAI, AGED 64 YEARS, RESIDING AT ASWATHY , SREEKRISHNA NAGAR, CHAVADI MUKKU, SREEKARIYAM P O, THIRUVANATHAPURAM -17 WHO IS A PRINCIPAL OFFICER OF THE PETITIONER COMPANY AUTHORISED TO SIGN PLEADING AFFIDAVITS ETC ON ITS BEHALF** **BY ADVS. SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP** ## **RESPONDENTS/RESPONDENTS:** **1 A.SHAMNAD, AGED 30 YEARS, S/O.ABDUL VAHID, RESIDING AT MANIYANTHIRA, THOPPU VEEDU, BALARAMAPURAM P.O.,THIRUVANANTHAPURAM.** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** ## **R2 BY PUBLIC PROSECUTOR SRI.SUMOD PN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.544/2008 -:2:- ## Dated this the 25[th] day of February,2020 ## J U D G M E N T Being aggrieved by the order of acquittal of the accused in a private complaint instituted as S.T. No.4614/2006 on the file of the Judicial First Class Magistrate-IV (Mobile Court) Thiruvananthapuram under Section 138 of the Negotiable Instruments Act,1881(for short 'the N.I. Act'), this appeal has been filed by the complainant. Before S.T. No.4614/2006 was transferred, it was pending trial on the file of Judicial First Class Magistrate, Thiruvananthapuram, as S.T. No.1209/2006. 2. The appellant is a registered consumer credit company represented in the complaint by its Assistant Manager. The case against the first respondent/accused is that he issued Ext.P1 cheque dated 07.06.2006 for a sum of Rs.21,100/- in the name of the complainant/company drawn on Indian Overseas Bank, Neyyattinkara branch in partial discharge of debt incurred by him. The cheque was later dishonoured on presentment for want of sufficient Crl.A.No.544/2008 ## -:3:- funds at the credit of the accused. The complainant gave due intimation of dishonour and sought discharge of liability by giving notice to the accused. Even after acceptance of notice, he failed to discharge the liability and therefore, prosecution was lodged under Section 138 of the N.I.Act. 3. The accused denied the charge and contested the case before the court below. PW1, who claimed to be the Assistant Manager of the company was examined on the side of the complainant. Exts.P1 to P6 are the documents adduced on the side of prosecution. No evidence was adduced by the accused. His contention before the trial court while questioned under Section 313 of the Code of Criminal Procedure, 1973 was that he was not liable to be prosecuted since he already discharged his liability with the company. He admitted having signed and issued Ext.P1 cheque. The complainant was still unjustifiably demanding amount which was not actually due to it. 4. The court below accepted the case of complainant and found that Ext.P1 cheque was issued in discharge of legally enforceable debt. The defence contention was rejected as being improbable. But it, however, chose to acquit the accused on the sole Crl.A.No.544/2008 -:4:- ground that PW1, who instituted the complaint on behalf of the company failed to prove that he was the Assistant Manager of the company competent to represent the complainant. Photocopy of Ext.P6 certificate dated 06.06.2002 allegedly issued by the Managing Director of the company was held to be not sufficient to prove that PW1 was authorised to represent the company. Ext.P6 was ignored as not being a valid document under law. This finding of the court below is assailed in this appeal. 5. I heard the learned counsel for the appellant. Even though notice of appeal was served on the accused, he did not appear and contest the appeal. 6. The sole question that survives in this appeal is, as to whether Ext.P6 could be regarded a valid document under law as being sufficient to authorise PW1 to prosecute the complaint on behalf of the complainant. The other finding of the court that the accused issued Ext.P1 cheque in discharge of legally enforceable debt does not appear to be worthy of any interference. 7. It is proved that Ext.P1 cheque arose out of a hire purchase transaction between the complainant Crl.A.No.544/2008 -:5:- and the accused. The accused does not dispute the transaction nor that he purchased a vehicle availing the loan sanctioned by the company. It has come out in evidence that, after repayment of part of the loan for sometime, there was default and consequently the vehicle was seized and sold by the company. According to the company, the entire loan arrears could not be still realised and this led to the accused issuing Ext.P1 cheque in discharge of partial liability. The veracity of prosecution case could not be successfully assailed by the accused. No rebuttal evidence was also brought in by him. The court below distinguished the decision in Sudha v. State of Kerala reported in [2004(2) KLT 746] and held that Ext.P1 cheque issued by accused was in discharge of legally enforceable debt and there was nothing to indicate that it was issued as a post-dated cheque simultaneous with sanction of loan so as to attract the application of the aforesaid decision. I do not find any ground to interfere with the finding of the court below that Ext.P1 cheque was drawn in the name of the company in discharge of legally enforceable debt and accordingly that finding is hereby confirmed. Crl.A.No.544/2008 ## -:6:- 8. Ext.P6 is a photocopy and it is seen that it was admitted in evidence only provisionally subject to objection. It was addressed to the Chief Judicial Magistrate, Thiruvananthapuram by the Managing Director of the company intimating that PW1 had every authority to represent the institution in criminal and civil cases. The Managing Director, the alleged signatory to Ext.P6 was not examined nor the document was sought to be proved in any legal manner. It was sought to be tendered in evidence through PW1, whose authority itself was under challenge. The conduct of the signatory to Ext.P6 in having addressed the Chief Judicial Magistrate before whom the case has been tried and sought to tender the document in evidence is not in any way appreciable. Having regard to the lack of proper conduct and also the casual manner in which the document was sought to be brought in evidence which the complainant considered to be material, the view taken by the court below in rejecting Ext.P6 as not being valid cannot be faulted. In my view also, Ext.P6 was rightly dismissed as being inadmissible. 9. The learned counsel for the appellant sought an opportunity to be given to the complainant to Crl.A.No.544/2008 ## -:7:- produce before the trial court necessary document in proof of proper authorisation and remit the matter back to the court below for fresh consideration of the question as to the authority of the signatory to the complaint to represent complainant company. Having heard the learned counsel for the appellant and in the interest of justice, I am of the opinion that the appellant ought to be given an opportunity to adduce the requisite evidence to prove that the signatory to the complaint has had legal authority to represent the company in the proceeding before the court below. In the result, appeal succeeds and the order of acquittal of the accused dated 31.01.2007 is set aside and the matter is remitted back to the court below to give an opportunity to the complainant to prove that it was properly represented by the signatory to the complaint. The court below shall give the accused also sufficient opportunity to join the complainant on the issue on hand and rebut the evidence and then take an appropriate decision in accordance with law, after hearing both sides. It is also directed that the court below shall take all efforts to dispose of S.T.No.4614/2006 within a Crl.A.No.544/2008 -:8:- period of two months from the date of receipt of the copy of this judgment. **Sd/-** ## T.V.ANILKUMAR,JUDGE DST //True copy// P.A. To Judge