N. Radhakrishnan v. Sri Rubber Industries and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 CRL.REV.PET NO. 508 OF 2010 ``` ``` AGAINST THE JUDGMENT DATED 01.01.2010 IN CRL.APPEAL NO.278 OF 2009 OF ADDITIONAL SESSIONS COURT (ADHOC-II), ERNAKULAM, ARISING OUT OF THE JUDGMENT DATED 23.03.2009 IN CC NO.269 OF 2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI REVISION PETITIONER/APPELLANT/ACCUSED: ``` ## **`N.RADHAKRISHNAN,`** ``` RUBBER DEALER AND EXPORTER, CEARS TOWERS, 2ND FLOOR, 39/180-A/2, ALAPPAT CROSS ROAD, RAVIPURAM, KOCHI-15. ``` ``` BY ADV. SRI.ABRAHAM JOHN ``` ## **`RESPONDENTS / RESPONDENTS/COMPLAINANT AND STATE:`** ``` 1SRI.RUBBER INDUSTRIES, JEW TOWN,COCHIN-2, REPRESENTED BY POWER OF ATTORNEY HOLDER SANDEEP K.SHAH, S/O.KISHORE R.SHAH, VIII/1705, MULLACKAL BHAGAVATHI LANE, COCHIN-2. ``` ``` 2STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADVS. SMT.A.PARVATHI MENON SRI.P.SANJAY ``` ## **`SRI.C.N PRABHAKARAN ( PUBLIC PROSECUTOR)`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON 12.03.2019, ALONG WITH CRL.REV.PETITION.512/2010, THE COURT ON 14.12.2023 DELIVERED THE FOLLOWING: ``` Crl.R.P. Nos. 508 and 512 of 2010 -:2:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 ``` ## **`CRL.REV.PET NO. 512 OF 2010`** ``` AGAINST THE JUDGMENT DATED 01.01.2010 IN CRL.APPEAL NO. 279 OF 2009 OF ADDITIONAL SESSIONS COURT (ADHOC-II), ERNAKULAM, ARISING OUT OF THE JUDGMENT DATED 23.03.2009 IN CC NO. 270 OF ``` ``` 2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` N.RADHAKRISHNAN, RUBBER DEALER AND EXPORTER, CEARS TOWERS, 2ND FLOOR, 39/180-A/2, ALAPPAT CROSS ROAD, RAVIPURAM, KOCHI-15. ``` ``` BY ADV. SRI.ABRAHAM JOHN ``` ## **`RESPONDENTS / RESPONDENTS/COMPLAINANT AND STATE:`** ``` 1SRI.RUBBER INDUSTRIES, JEW TOWN,COCHIN-2, REPRESENTED BY POWER OF ATTORNEY HOLDER SANDEEP K.SHAH, S/O.KISHORE R.SHAH, VIII/1705, MULLACKAL BHAGAVATHI LANE, COCHIN-2. ``` ``` 2STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADVS. MS.VARGHESE JACOB SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO SRI.P.J.VINOD JOSEPH ``` ## **`SRI.C.N PRABHAKARAN ( PUBLIC PROSECUTOR)`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON 12.03.2019, ALONG WITH CRL.REV.PETITION 508/2010, THE COURT ON 14.12.2023 DELIVERED THE FOLLOWING: ``` Crl.R.P. Nos. 508 and 512 of 2010 -:3:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. Nos. 508 and 512 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of December, 2023 ## **O R D E R** These revisions are filed challenging judgments passed by Additional Court of Sessions (Adhoc-II), Ernakulam (for short, ‘the appellate court’) in Crl.A. Nos.278/09 and 279/09. 2. Crl. Appeals referred to above have been filed against judgments passed by Judicial First Class Magistrate Court-II, Kochi (for short ‘trial court’) in CC Nos.269 and 270 of 2006 on 23.03.2009. The revision petitioner in both cases is the appellant before the appellate court and accused before the trial court. The respondents are respondents before the appellate court and complainant before the trial court. The prosecutions numbered as CC Nos.269/06 and 270/06 were launched by the 1[st] respondent company under Section 142 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) alleging that an Crl.R.P. Nos. 508 and 512 of 2010 -:4:- offence punishable under Section 138 N.I. Act was committed by the accused. The revision petitioner faced trial before Judicial First Class Magistrate Court-II, Kochi in both cases. He was found guilty and convicted in both cases. In CC No.269/06 he was sentenced to undergo imprisonment till rising of the court and to deposit a sum of `17,00,000/- as fine, which on being deposited was directed to be given to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). He was also directed to undergo simple imprisonment for six months in case of default in payment of the fine amount. In CC No.270/06 he was sentenced to undergo imprisonment till rising of the court and to deposit a sum of `9,00,000/- as fine which on payment was directed to be given to the complainant as compensation under Section 357(1) (b) Cr.P.C and to undergo simple imprisonment for six months in case of default in payment of the fine amount. 3. The judgments of the trial court were assailed in Crl.A. Nos.278/09 and 279/09 and the appellate court dismissed the appeals and thus confirmed the finding of guilt, orders of Crl.R.P. Nos. 508 and 512 of 2010 -:5:- conviction and sentence. Aggrieved by the judgments passed as above, the accused has approached this Court in the revisions on hand. 4. Parties to these revision petitions are referred to hereinafter in accordance with their status before the trial court as the complainant and the accused. 5. Sri.Abraham John, the learned counsel represented the accused in both cases. It was contended by the learned counsel that the judgments of the trial court as well as the appellate court suffer for illegality, impropriety and infirmity. According to him, the trial court as well as the appellate court failed to appreciate the evidence on record in its correct perspective and therefore, is unjustified in finding the accused guilty for the offence under Section 138 N.I Act. According to him, the trial court ought to have found that the accused had successfully rebutted the legal presumption regarding the existence of a legally enforceable debt on the strength of the evidence adduced by him in defence. It is contended by the learned counsel that sustainability of the complaints itself are under stake when Crl.R.P. Nos. 508 and 512 of 2010 -:6:- viewed in the light of the dictum laid down in **Nazar v. State of Kerala** [2008(1) KLT 28]. It was held in the case that the complaint lodged by a firm in the name of the firm is not maintainable in the absence of an analogus provision in Cr.P.C like Order XXX in the Code of Civil Procedure, 1908. According to the learned counsel, a contention in that regard was specifically raised before the trial court as well as the appellate court but it was not adverted to in the correct perspective. According to him, in the prosecutions on hand, the complainant firm was represented by its Power of Attorney Holder who also mounted the witness box to depose on behalf of the complainant as PW1. According to him, the Power of Attorney Holder cannot step into the shoes of the complainant to depose on it’s behalf and therefore oral evidence tendered by him as PW1 ought to have been discarded by the trial court. The learned counsel has cited **Anirudhan v. Philip Jacob** [2006 (3) KLT 554] to rest his contention. 6. The power of attorney holder deposed as PW1. But, he only gave a totally inconsistent version regarding the transaction. Crl.R.P. Nos. 508 and 512 of 2010 -:7:- He deposed as if he was not truly conversant with the transaction. He has gone to the extent of stating that he would be able to answer the questions only on perusal of the account books. PW1 has stated further that cheques given in the year 2004 were returned by the accused and the present cheques based on which prosecutions stood launched were given in substitution. But the complaints are silent on that aspect. According to him, if the inconsistencies and omissions have been properly taken care of, the courts would have taken a view that the presumption under Section 139 N.I Act had been rebutted by the accused successfully. The learned counsel has also drawn the attention of this Court to the three cheques involved in the complaints to contend that the total amount shown are `11,51,905/- and `16,48,430/- but as per the purchase bills produced, only `16,48,430/- and `8,44,925/- are payable. According to him, though questioned about it, PW1 was unable to give a satisfactory answer. According to him, copy of the extract of the ledger was produced by the accused before the trial court and attempted to rebut the presumption, that was not acted Crl.R.P. Nos. 508 and 512 of 2010 -:8:- upon by the trial court. Raising arguments of the nature, the learned counsel for the accused canvassed for reversal of the judgments under challenge. 7. According to Sri.Sanjay, the learned counsel for the respondents, the arguments advanced by the learned counsel for the accused being totally devoid of merits, are liable to be discarded. According to him, the Apex Court has held in **Bir Singh v. Mukesh Kumar** [2019 (1) KHC 774] that a revisional court is not empowered to set aside the judgments, where the guilt of the accused have been concurrently found and they have been convicted and sentenced, unless a jurisdictional error or a fundamental question of law is involved. According to him, the judgments of the trial court as well as appellate court do not suffer from any illegality or jurisdictional error and therefore the revisions are not liable to be entertained. 8. Challenge being raised on maintainability of the revision petitions on hand, it is incumbent upon this Court to delve into the grounds raised in the revision petitions on hand to Crl.R.P. Nos. 508 and 512 of 2010 -:9:- see whether any of those would indicate a jurisdictional error or illegality. 9. It is pertinent to note from the judgment of the trial court that during trial, the complainant had examined his Power of Attorney Holder as PW1. Documentary evidence was also adduced and it consists of Exts.P1 to P29. On the defence side oral evidence was not adduced but ledger extract alone was marked in evidence as Ext.D1. The complaints have been filed by the complainant firm to launch prosecutions by the complainant firm through its Power of Attorney Holder in both cases. The maintainability of the complaint filed by the Power of Attorney Holder of the complainant to launch a prosecution under Section 138 N.I Act was questioned by the learned counsel. As per Section 138 N.I Act, a prosecution for dishonour of a cheque for insufficiency of funds in the account maintained by the accused or for the reason ‘refer to drawer’ could be launched either by the payee of the cheque or its holder in due course. In the case on hand, a firm named ‘Sri Rubber Industries’ was the payee of the cheque and therefore, it ought to have been the Crl.R.P. Nos. 508 and 512 of 2010 -:10:- complainant in the prosecution on hand. A reading of the complaints would reveal that the complainants in the prosecution was the firm represented by its Power of Attorney Holder. It has been held by this Court in **Anirudhan** supra relying on Section 3 of Powers of Attorney Act, 1882 (7 of 1882) that by filing a complaint and tendering of oral evidence, the Power of Attorney Holder will not step into the shoes of the complainant. It was held that for being the Power of Attorney Holder, his competency to speak the facts exclusively within his knowledge was not taken away and does not cease to an end. 10. In the case on hand, Sri.Sandeep K. Shah was the Power of Attorney Holder who represented the firm M/s. Sri Rubber Industries. The firm being a legal entity, it cannot act on it’s own. It must be represented by someone who is having the authority to do so. It is pertinent to note that Sri.Sandeep K. Shah though represented the firm in the complaint is also it’s accountant. As PW1, he has also spoken categorically about all material aspects of the transaction which caused the issuance of the disputed cheques. True that he has stated responding to Crl.R.P. Nos. 508 and 512 of 2010 -:11:- some questions put to him that he could answer only upon perusal of the accounts of the firm. But on certain crucial aspects of the prosecution relating to the disputed cheque, he deposed precisely. He was not defeated in the cross examination by the defence on material aspects. He being the accountant of the firm, cannot be said to have been not associated with the transactions that create monetary liability, in respect of which the disputed cheques were issued. 11. Unlike Section 141 N.I. Act, no provision is there directing that a firm or the company when prosecutes a complaint under Section 142 N.I Act, shall be represented only by a category of officers. The direction in Section 142 N.I Act was that a complaint to prosecute a person for an offence under Section 138 N.I Act shall be filed by the payee or holder in due course. In the cases on hand, the complainant is the firm itself and was represented by it’s accountant who has authorisation to do so by virtue of a Power of Attorney executed by the firm, marked in evidence as Ext.P2. The firm being a legal entity, it authorised its accountant to represent it in the complaints. Being Crl.R.P. Nos. 508 and 512 of 2010 -:12:- an accountant and familiar with the financial transactions of the firm, he deposed on behalf of the firm. His version was also not defeated in the cross examination. Therefore, there was nothing wrong in relying on his version. The question of maintainability of the complaints was answered by the trial court in favour of the complainant and there is every reason to maintain it and this Court do so. 12. As per the pleadings in the complaint in both cases, the disputed cheques bearing Nos.133495, 133491 and 133492 involved in CC No.269/06 and Cheques bearing Nos. 133493, 133494 and 133496 involved in C.C No.270/2006 were issued to discharge the payment towards cost of the articles purchased from the complainant firm. Admittedly of the accused, certain signed blank cheques were given by him to the complainant as security towards business dealings and without deducting the amounts already paid by him, those were presented by the complainant by writing huge sums and on bouncing of those, the complaints in question were launched. According to him, being Crl.R.P. Nos. 508 and 512 of 2010 -:13:- of civil nature, the prosecutions initiated are liable to be discarded as unsustainable. 13. The accused failed to mount the witness box to depose on the case put forth by him in defence during cross examination. Ext.D1 was marked on his side in evidence, which is nothing but the extract of the ledger. The case of the accused was that part payment has been made and the amount covered by the disputed cheque is not actually due from him. Ext.D1 produced by him also did not show that the entire dues towards the firm has been discharged. The accused does not have a case that the disputed cheques were stolen from him or were lost from his custody. On the contrary, the case projected was that the cheques were issued as security during the business transactions with the complainant. The accused does not also have a case that the disputed cheques were issued unsigned. Therefore, admittedly of the accused himself in both cases, the disputed cheques were issued voluntarily but in a transaction totally different from that alleged by the complainant. When voluntary issuance of the cheques stood established, the Crl.R.P. Nos. 508 and 512 of 2010 -:14:- presumption under Section 139 N.I Act would be attracted. The onus is then shifted to the accused to adduce evidence to establish that the disputed cheques were issued as security during their business dealings. Ext.D1 produced is only an extract from the ledger. The revision petitioner did not even mount the witness box to depose about the various aspects of the case putforth by him. 14. Therefore, evidence is not forthcoming from the accused to discredit the stand of the complainant that the cheques were issued towards discharge of a monetary liability that arose from purchase of materials from the complainant. The revision petitioner though has raised a claim that the disputed cheques have been retained by the complainant even after discharge of the monetary liability, repayment of which is proposed to be secured by those cheques. But, evidence has been given to the effect that only part payment was due to the complainant. The complainant’s specific case in the complaint was that `16,48,430/- was due from the accused in CC No.269/2006 and `8,44,925/-, in CC No.270/2006 and to Crl.R.P. Nos. 508 and 512 of 2010 -:15:- discharge that, the disputed cheques were given. PW1 though cross examined elaborately, nothing supportive of the claim of the accused was brought out. 15. Ext.D1 is in no way helpful to the accused in discharging his onus to rebut the presumption that stood attracted in favour of the complainant under Section 114 of the Evidence Act as well as under Section 139 N.I Act. The delivery of the materials was not disputed. The authorship of signature found in the disputed cheques and the handwritings by which it’s entries are filled, are not denied by the accused. Who filled up the entries in the disputed cheques is a matter irrelevant for consideration when the cheques were admittedly issued voluntarily by the accused to the complainant. Only the liability to discharge the amount shown in the cheques was disputed. Once the presumption that the disputed cheques were issued to discharge the legally enforceable debt or liability to the complainant is attracted, it would remain to support the complainant, until the accused proves to the contrary. It is for the accused to establish that `16,48,430/- and `8,44,925/- Crl.R.P. Nos. 508 and 512 of 2010 -:16:- respectively claimed by the complainants in C.C Nos.269/2006 and 270/2006 as due to him were actually due from him to the complainant. 16. This could have been done by him by causing the case of the complainant incredible by bringing some preponderance of probabilities in his version during cross examination or else by bringing forth some independent evidence liable to discredit him. In the case on hand, the accused did not summon the production of the ledger and account books maintained by the complainant during the course of their business transactions. The accused failed even to dispute the vouchers which would establish purchase of materials by him from the complainant. Ext.D1 produced is of no help to him in the matter of discharging the onus to rebut the presumption 17 The Crl.RPs therefore fail and those are liable to be dismissed. In the result, the revision petitions are dismissed, the judgments of the trial court as well as the appellate court, assailed are confirmed. The accused shall surrender before the Crl.R.P. Nos. 508 and 512 of 2010 -:17:- trial court to serve the sentence already imposed on him and confirmed by the appellate court. The amount directed by the trial court and stood confirmed by the appellate court as fine shall be paid within a period of two months from the date on which a certified copy of this common judgment is received. In case of default of the accused to pay the fine, the trial court shall proceed to execute the sentence immediately on expiry of the time granted now. If the fine amount is deposited within the time, the same shall be defrayed as compensation to the complainant who is none other than the 1[st] respondent in the case on hand, under Section 357(1)(b) Cr.P.C. **Sd/-** **MARY JOSEPH JUDGE** ttb