SANKARANKUTTY NAIR v. S. ASHA (Crl.Rev.Pet. No. 3272 of 2005)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 9TH DAY OF APRIL 2018 / 19TH CHAITHRA, 1940** **Crl.Rev.Pet.No. 3272 of 2005** **----------------------------CRA 184/2002 of ADDL.SESSIONS COURT-I, MAVELIKKARA DATED 17.10.2005 CC 520/1997 of J.M.F.C., MAVELIKKARA DATED 15.6.2002** **------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :-** **-----------------------------------------** **SANKARANKUTTY NAIR, S/O.GOVINDAN NAIR, THURUTHIYIL KIZHAKKETHIL, KARIMULACKAL MURI, KOMALLOOR, CHUNNAKKARA VILLAGE, MAVELIKARA.** ## **BY ADV.SRI.A.SHAFEEK (KAYAMKULAM)** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT :-** **-------------------------------------** **1. S.ASHA, MAHALAKSHMY, PUTHUPPALLYKUNNAM, CHARUMMOODU, REPRESENTED BY POWER OF ATTORNEY HOLDER SREEKUMAR, S/O.KESAVAN NAIR, VALIYAVILAYIL VEEDU, IDAKKUNNAM MURI, CHARUMMODU.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.ALEXANDER GEORGE** **R2 BY SR.PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-04-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.UBAID, J.** **-----------------------------------------Crl.R.P. No.3272 of 2005 --------------------------------------------------Dated this the 9[th] day of April 2018** ## **O R D E R** The revision petitioner herein is the accused in C.C. No.520/1997 of the Judicial First Class Magistrate Court, Mavelikara, and the 1[st] respondent herein is the complainant in the said case brought on allegations under Section 138 of the Negotiable Instruments Act (for short, 'the N.I.Act'). The complainant's case is that in discharge of the amount due from the accused towards the balance consideration in a transaction of purchase of a vehicle, the accused issued a cheque for `1,59,000/-, and the said cheque was bounced due to insufficiency of funds in the account of the accused. In spite of statutory notice, the accused failed to make payment of the cheque amount. The accused appeared before the learned Magistrate, and pleaded not guilty when the substance of the accusation was read over and explained to him. Crl.R.P. No.3272 of 2005 -: 2 :- 2. The complainant examined her Power of Attorney Holder as PW1, and proved Exts.P1 to P5 documents. The accused denied the incriminating circumstances, and projected a defence of total denial, including denial of execution of the cheque, when examined under Section 313 Cr.P.C., and also during trial. In defence, the accused examined the Assistant Manager of the Federal Bank, Chunakkara Branch as DW1, and examined Exts.D1 to D3 documents. 3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for three months, and he was also directed to pay a compensation of `1,59,000/- under Section 357(3) Cr.P.C. Aggrieved by the judgment of conviction dated 15.6.2002, the accused approached the Court of Session with Crl.A. No.184/2002. In appeal, the learned Ist Additional Sessions Judge, Mavelikara confirmed the conviction, but modified the sentence. Accordingly, the jail sentence was reduced to simple imprisonment for one month. The direction to pay compensation was maintained by the Crl.R.P. No.3272 of 2005 -: 3 :- appellate court. Now, the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence. 4. The 1[st] respondent remained absent in this proceeding, in spite of notice directly received by her. It appears that the 1[st] respondent is not interested in prosecuting the matter now. The revision petitioner challenges the conviction on the ground that there is no legal evidence by the competent person to prove the offence alleged. The complaint was initially brought by the complainant through her husband as Power of Attorney Holder. During trial, she executed another Power of Attorney in favour of another person, and the said person was examined as PW1. The Power of Attorney in his favour was also proved as Ext.P1. The Power of Attorney executed by the complainant in favour of her husband, who initiated prosecution on her behalf, is not seen proved. PW1 also did not say anything about such a Power of Attorney during trial. This means that the complainant's husband, who brought complaint on her behalf, had no proper and legal authorisation to bring the Crl.R.P. No.3272 of 2005 -: 4 :- complaint. If so, cognizance was wrongly taken by the trial court on the said complaint. This is a legal infirmity affecting the prosecution. 5. Now, let me see whether there is clear and satisfactory evidence to prove the case beyond reasonable doubt. The case of the complainant is that the accused had purchased a vehicle from her, and towards the amount of balance consideration, the cheque in question was issued by the accused. The transaction is denied by the accused. His definite case is that he had not issued any such cheque voluntarily in discharge of any legally enforceable debt. PW1 is the Attorney authorised by the complainant during trial. An examination of his evidence shows that he does not in fact know the details of the transaction in between the complainant and the accused, and he had also not in fact seen due and conscious execution of the cheque by the accused voluntarily. 6. The learned counsel cited a decision of the Hon'ble Supreme Court in **Narayanan A.C. and another** v. **State of Maharashtra and others** [2015 (1) KHC 456 = 2015 Cri.LJ Crl.R.P. No.3272 of 2005 -: 5 :- 1434]. It was held therein that in a complaint brought under Section 138 of the N.I.Act through Power of Attorney Holder, the trial court has a duty before issuing process, and taking cognizance, to ascertain whether there is a proper and legal Power of Attorney, and also whether the Attorney Holder has knowledge of the facts mentioned in the complaint. This is a case, where the complaint was initially brought by the complainant's husband as Power of Attorney Holder. The complaint does not show whether he had direct knowledge of the facts of the case. The Attorney in his favour is not seen proved during trial. Any way, pending trial, the complainant authorised somebody else to prosecute the complaint. He is PW1, and Ext.P1 is the Power of Attorney in his favour. Even assuming that there was a valid Power of Attorney in favour of the complainant's husband, who brought the complaint first in court, the issue now is whether PW1 is in fact competent to give evidence on facts, as the person, who had knowledge of the transaction between the accused and the complainant, including knowledge of due execution of the cheque in question. Crl.R.P. No.3272 of 2005 -: 6 :- 7. In **Narayanan and another** v. **State of Maharashtra** [2013 (3) KHC 885 = 2013 (4) KLT 21], the Hon'ble Supreme Court explained that a Power of Attorney Holder engaged by the complainant in a proceeding brought under Section 138 of the N.I.Act can depose before court, and verify on oath to prove the contents of the complaint only if he had witnessed the transaction as an agent of the complainant, and had witnessed the execution of the cheque in question. 8. An examination of the evidence given by PW1, who claims to be the Power of Attorney Holder of the complainant, shows that he does not have direct knowledge about the transaction between the complainant and the accused. The complainant's husband did not turn up to give any evidence in court as the person, who brought complaint and initiated prosecution on behalf of the complainant. In a case, where the first Power of Attorney Holder is substituted by another one, the second one must be able to depose before the court about the transaction between the complainant and the accused, on the basis of direct knowledge, or information. PW1 does not have such direct knowledge or information, Crl.R.P. No.3272 of 2005 -: 7 :- either regarding the transaction between the complainant, and the accused, or regarding the voluntary and conscious execution of the cheque in question. I find that there is no legal evidence in this case to sustain the conviction under Section 138 of the N.I.Act. The legal issues discussed above were not considered by the courts below. It is pertinent to note that in spite of notice received from this Court, the complainant did not turn up to contest the revision. In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 138 of the N.I.Act, and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against the revision petitioner in C.C. No.520/1997 of the trial court, will stand set aside. **Sd/P.UBAID** //TRUE COPY// P.A. TO JUDGE Jvt/11.4.2018