Nelson K. J. and Laly Nelson v. Satheeshkumar T.A. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933** ## **Crl.Rev.Pet.No. 2274 of 2011 ( )** **-------------------------------CRA.NO.40/2010 of IIND ADDL.SESSIONS COURT, THODUPUZHA ST.NO.38/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT,ADIMALI** **----------------------------------** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED:** **----------------------------------------------------------------------------** **1. NELSON.K.J, AGED 43 YEARS, KILIVALLICKAL HOUSE, BISONVALLEY.P.O. BISONVALLEY VILLAGE, IDUKKI DISTRICT.** **2. LALY NELSON, W/O.NELSON, DO... DO... DO...** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS/COMPLAINANT AND STATE:** **-----------------------------------------------------------------** **1. SATHEESHKUMAR.T.A., S/O.T.K.ACHUTHAN, BUSINESS MANAGER,** **SREE GOKULAM CHIT AND FINANCE COMPANY PVT.LTD., ADIMALY BRANCH.PIN-685 586** ## **2. STATE OF KERALA,** **REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.-31.** ## **R1 BY ADV. SMT.A.SREEKALA** **R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2274 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of February, 2012 ## O R D E R The accused were prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. They were found guilty. Therefore, they were convicted and sentenced to suffer simple imprisonment for a period of three months and to pay a sum of `17,500/- each to the complainant as compensation under Section 357(3) of Cr.P.C. In default of payment of which, they had to suffer simple imprisonment for a period of 1 month each. In appeal, the lower appellate court confirmed the conviction and the substantive sentence is modified as one to imprisonment till the rising of the court and to pay a sum of `17,500/- each as compensation to the complainant. In default, they had to suffer simple imprisonment for a period of one month each. 2. According to the complainant, the accused had incurred a joint liability to pay a sum of Rs.35,125/- to Sree ## -:2:- ## Crl.R.P.No.2274 of 2011 Gokulam Chits and Finance Company Ltd. In order to discharge the said liability, they issued Ext.P2 cheque. Later on presentation, it bounced for want of funds in the account of the accused. Notice issued to the accused neither invoked any reply nor was the amount paid. Hence the complaint was laid. 3. Cognizance of the offence was taken by the trial court. On appearance of the accused, the particulars of the offence were read out to them, to which they pleaded not guilty and claimed to be tried. The power of attorney holder, the complainant examined as PW1 and had Exts. P1 to P7(a) marked. After the close of the complainant's evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out against them in the evidence and maintained that they were innocent. They denied having any transaction with the company and also denied the execution of the cheque. They also contended that the complaint has no locus standi to file the complaint. No defence evidence was adduced. -:3:- Crl.R.P.No.2274 of 2011 4. On an appreciation of the evidence in the case, both the courts below came to the conclusion that Ext.P2 cheque was in fact issued by the accused in discharging a debt due to the company and the claim that they owed no debt to the company is incorrect. As regards the maintainability of the complaint, it was found that, the complaint was laid by the authorised power of attorney holder of the company on behalf of the company, which is clear from the proof affidavit filed by PW1. Based on these findings, the accused were found guilty and convicted and sentenced as already mentioned. 5. The learned counsel appearing for the revision petitioners brought one point to the consideration of this Court. Reference was made to the description of the complaint, wherein it is pointed out that the complaint was not laid on behalf of the company by the Manager. If that be so, complainant was incompetent to institute proceedings, therefore the complaint should fail. 6. The learned counsel appearing for the respondent pointed out that both the courts below have considered this ## -:4:- ## Crl.R.P.No.2274 of 2011 aspect in considerable detail. From a reading of the complaint and the proof affidavit filed in support of the complaint, it became clear that the complainant was acting for and on behalf of the company in whose favour the cheque was issued. Accordingly there is no merit in the contention raised by the learned counsel for the revision petitioner. 7. The learned counsel appearing for the revision petitioner relied on the decision reported in **Milind Shripad Chandurkar v. Kalim M.Khan [2011(2) KLT 271(SC)]** and contended that when a cheque was drawn in the name of the proprietary firm, power of attorney holder is not entitled to prefer complaint. In the said decision it was held as follows:- Where the “payee” is a proprietary concern the complaint can be filed (i) by the proprietary concern describing himself as the sole proprietor of the “payee”; (ii) the proprietary concern describing itself as the sole proprietary concern represented by it's proprietor; (iii) the proprietor or the proprietary concern represented by the Attorney Holder under the power of attorney executed by the sole proprietor. However, it shall not be permissible for an Attorney Holder to file the complaint in his own name as if he -:5:- ## Crl.R.P.No.2274 of 2011 was the complainant. He can initiate criminal proceedings on behalf of the principal. In a case of this nature, where the “payee” is a company or a sole proprietary concern, such issue cannot be adjudicated upon taking any guidance from S.142 of the Act 1881 but the case shall be governed by the general law i.e. the Companies Act 1956 or by civil law where an individual carries on business in the name or style other than his own name. In such a situation, he can sue in his own name and not in trading name, though others can sue him in the trading name. So far as S.142 is concerned, a complaint shall be maintainable in the name of the “payee”, proprietary concern itself or in the name of the proprietor of the said concern. The general principles of company law or civil law would apply for maintaining the complaint under S.138 of the Act 1881. 8. Based on this decision , it is contended that the present complaint is similar to the one dealt with the by Apex Court in decision cited above. Therefore the complaint has to fail. 9. A reading of the proof affidavit will clearly show that the proceedings were instituted for and on and behalf of the concern in favour of which the cheque was issued and the complainant Mr. Satheesh Kumar was acting in his capacity as the Business Manager of the Company and on the power of attorney issued by the company. The nondescription in cause title is insufficient to dismiss the ## -:6:- ## Crl.R.P.No.2274 of 2011 complaint. The complaint along with other documents and evidence make it clear that the complaint was laid by the authorised person concerned. PW1 is the Business Manager and also the Power of Attorney holder of the company. Principle laid down in the decision referred to by the learned counsel appearing for the revision petitioner can have no application to the facts of the case. Both the courts below have considered the this aspect in considerable detail and have found that the complaint was in fact laid for and on behalf of the company by the authorised person i.e. the power of attorney holder of the company who was also the Business Manager of the Company. The courts below have considered the entire evidence in proper perspective and it is not shown that the findings entered by the courts below suffer from any factual or legal infirmity. 10. The result is that the revision petition is without any merits and was accordingly dismissed. 11. Faced with the above situation, the learned counsel appearing for the revision petitioners prayed that ## -:7:- Crl.R.P.No.2274 of 2011 some time may be granted to pay the amount ordered by the lower appellate court so as to ward off the default sentence. Considering the various aspects of the case and also the sentence awarded by the lower appellate court, it is felt that a short time can be granted to the revision petitioners to comply with the sentence awarded by the lower appellate court. In the result, while confirming the conviction and sentence passed by the lower appellate court under Section 138 of Negotiable Instruments Act, the revision petitioners are granted two months time from today to pay the compensation amount awarded by the lower appellate court, in default of payment of which, the default clause imposed by the lower appellate court shall take effect. P.BHAVADASAN, JUDGE kkj