Royal Auto Credits, Muvattupuzha v. State of Kerala and Sabu K.K.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934 CRL.A.No. 233 of 2007 (D ) ------------------------CC.967/2002 of J.M.F.C., MUVATTUPUZHA CRLP.6/2007 DATED 05-01-2007 ## PETITIONER:COMPLAINANT: ------------------------ M/S.ROYAL AUTO CREDITS, MUVATTUPUZHA, REPRESENTED BY POWER OF ATTORNEY HOLDER, DILEEP P. SREENIVAS. BY ADV. SRI.PEEYUS A.KOTTAM ## RESPONDENTS:STATE & ACCUSED: ----------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SABU K.K., S/O.KASSIM, KUNNATHU HOUSE, UDUMBANNOOR P.O., THODUPUZHA. R2 BY ADV. SRI.BIJIMON C.CHERIAN R2 BY ADV. SMT.P.P.STELLA R1 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. -----------------------------------Crl.A.No.233 of 2007 -----------------------------------Dated this the 10[th] day of December, 2012** ## **JUDGMENT** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as it is aggrieved by the order dated 07/10/2006 in C.C.No.967 of 2002 of the court of the Judicial Magistrate of the First Class, Muvattupuzha by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant/appellant is that, it is a partnership firm engaged in the hire purchase business and as per the hire purchase agreement dated 8/3/2001 between the complainant and the accused, who is the hirer, the accused has to pay an amount covered by the hire purchase agreement, with respect to a Jeep bearing Reg.No.KL.7.K.1741. According to the Crl.A.No.233/2007 : 2 : complainant, the accused has defaulted in paying the installment and on demand the accused paid the defaulted amount as per Ext.P4 cheque dated 23/07/2002 for an amount of `53,900/-. It is the further case of the complainant that, when the said cheque presented for encashment, the same was dishonoured for want of sufficient fund in the account of the accused and the accused has not paid the amount in spite of a statutory notice served on him and thus the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PW.1 was examined from the side of the complainant and produced Exts.P1 to P9. From the side of the defence, DW.1 was examined and produced Ext.D1 post card. The trial court, after considering the entire evidence and materials under point No.1, found that, nobody is seen authorised by M/s.Royal Auto Credits, Muvattupuzha, the complainant firm to represent it on 13/09/2002 to prosecute or defend against the judicial proceedings. Under point Nos.2 and 3 it is Crl.A.No.233/2007 : 3 : further found that, the accused has no legally enforceable debt or liability and no presumption is available in favour of the complainant. Accordingly, it is found that, the accused is not guilty of the said offence and he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal. 3. I have heard Sri.Peeyus A.Kottam, learned counsel for the appellant. I have gone through the judgment of the trial court and also the evidence and materials on record. 4. The learned Magistrate has specifically found that, Ext.P1 is the attested copy of the power of attorney of the complainant firm appointing one Dileep P.Sreenivas as power of attorney of the company. Ext.P1 is a deed dated 3/1/2005. The learned Magistrate has also found that as per the resolution of M/s.Royal Auto Credits Muvattupuzha dated 13/11/2004, a resolution was passed by the firm to appoint Dileep P.Sreenivas as the Crl.A.No.233/2007 : 4 : power of attorney. The said resolution is marked as Ext.P2. It is further found by the learned Magistrate that, later, on 03/08/2005, the complainant has produced a true extract of the resolution of M/s.Royal Auto Credits Muvattupuzha for the appointment of Dileep P.Sreenivas as power of attorney holder. Another resolution dated 13/11/2004 is marked as Ext.P9. Thus, on the basis of Ext.P9, Dileep P.Sreenivas was appointed as power of attorney holder on 03/01/2005, marked as Ext.P8. But the learned Magistrate has further found that, the complaint was filed on 13/09/2002 and consequently the further question considered is who was authorised by the firm to file the complaint as on 13/09/2002?. As per the complaint, the same was presented by one Eldho Paul, but no document is produced to show that Sri.Eldho Paul or Dileep P.Sreenivas has any authorisation to present the complaint on behalf of the complainant on 13/09/2002. All the documents produced by the complainant to prove the authority of the competency of Crl.A.No.233/2007 : 5 : the person represented by the complainant are not legal and valid and the same are against the claim of the complainant. So, I find no fault with the learned Magistrate in holding that nobody is seen authorised by M/s.Royal Auto Credits Muvattupuzha to represent the complainant company as on 13/09/2002 to prosecute the complaint. 5. With respect to the case of the complainant, on merit, the learned Magistrate has found that, the claim of the complainant is that the cheque in question was allegedly issued by the accused towards the discharge of an amount of `53,900/-. The defence set up by the accused is to the effect that on 24/05/2001 he had sold the jeep to one Sasi with the help of the complainant's agent and to substantiate the above fact, DW.1 was examined and Ext.D1 was marked through him. As per the evidence of DW.1, he is a guarantor of the complaint and as per Ext.D1, 3 installments were defaulted. As per Ext.D1 letter, he requested the hirer/accused to insist the Crl.A.No.233/2007 : 6 : third party, who purchased the jeep to pay the amount, which is due. According to the accused, the purchaser of the jeep remitted the amount to the complainant and therefore no legally enforceable debt or liability due to the complainant from the accused. The learned Magistrate after considering the case of the complainant and the defence set up by the accused which has supported by the evidence and materials, came into the conclusion that the complainant is not entitled to get the presumption under Section 139 of the N.I. Act. Thus, it is on the basis of the findings firstly with respect to the competency of the complainant and secondly on the merit regarding the transaction, the trial court found that, the accused is not guilty under Section 138 of the N.I. Act. Thus, he is acquitted under under Section 255(1) of Cr.P.C. The appellant has no case that the trial court has overlooked any materials or evidence which are in favour of the appellant. The findings of the court below under point Nos.1, 2 and 3, according to me, is supported by Crl.A.No.233/2007 : 7 : materials and evidence on record and therefore, it cannot be said that, the said findings are perverse or illegal so as to interfere with the order of acquittal recorded in favour of the accused. 6. 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 that, “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, according to me, the appellant has miserably failed to make out a prima facie case in support its challenge against the findings of the court below and no compelling reasons are made out to interfere with the Crl.A.No.233/2007 : 8 : order of acquittal recorded in favour of the accused. Therefore, the appeal fails. In the result, the above appeal is dismissed. Sd/- **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge