## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH**
**WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930**
**CRL.REV.PET.NO. 1128 OF 2000()**
**------------------------------------------CRA.241/1998 OF II ADDL.SESSIONS COURT, KOLLAM CC.474/1995 OF JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY**
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## **REVN. PETITIONER(S)- APPELLANT - ACCUSED:**
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**SASI, PROPRIETOR, APSARA ELECTRONICS OACHIRA, KOLLAM.**
**BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)**
## **RESPONDENT(S) - STATE - RESPONDENT - COMPLAINANT:**
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**1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.**
**2. SIVASANKARAKURUP, THAMARATHEKKETHIL HOUSE, MANAPPALLY NORTH, KARUNAGAPPALLY.**
**BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. ADV. SRI.B.KRISHNA MANI FOR R2 SRI.V.PREMCHAND FOR R2**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **THOMAS P.JOSEPH, J.**
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## **CRL.R.P. No.1128 of 2000**
= = = = = = = = = = = = = == = = = = = = = = = = = **Dated this the 10th day of December, 2008**
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This revision petition arises from conviction and sentence imposed on revision petitioner by the Court of Judicial First Class Magistrate, Karunagappally in C.C. No.474 of 1995 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Learned magistrate sentenced the revision petitioner to undergo rigorous imprisonment for six months. Appeal preferred by him was dismissed.
2. Heard both sides.
3. Following points arise for consideration:
- (i) Whether complaint is maintainable?
- (ii) Whether cheque was issued for discharge of a legally recoverable debt/liability?
- (iii) Whether sentence is excessive?
## **Point No.1:**
4. Case of second respondent is that revision petitioner borrowed Rs.45,500/- from his Principal, Sarath Chandran who is the proprietor of M/s.S.S. Agencies and issued cheque dated 25.3.1994
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(Exhibit P2 is the photocopy) towards repayment of that amount. Shri Sarath Chandran presented the cheque for encashment, but it was dishonoured for insufficiency of funds. Notice was issued to revision petitioner on 14.7.1994 (copy of notice is not marked in evidence) intimating dishonour and demanding payment of the amount. Notice was served on the revision petitioner, but he did not repay the amount. Hence second respondent filed the complaint.
5. Learned counsel for revision petitioner contends that the complaint is not maintainable since under Section 142 of the Act complaint can be filed only by the payee or holder in due course as the case may be, complaint in this case is filed by the second respondent which does not satisfy the said requirement and hence the complaint is not maintainable. Learned counsel for second respondent would say that by virtue of Exhibit P1, Power of Attorney second respondent is the duly constituted attorney of his Principal, Sarath Chandran and hence second respondent was competent to do whatever that Sarath Chandran was entitled to do. Counsel placed reliance on the decisions in **Gopalakrishnan v. Karunakaran** (2006(4) KLT 416 Mad. HC) and **Asalatha v. State of Kerala** (2007(3) KLT 984).
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6. In **Gopalakrishnan’s case** a Division Bench of the Madras High Court held that by virtue of Section 2 of the Power of Attorney Act, complaint even if not signed by the Power of Attorney holder on behalf of complainant but signed in his own name is maintainable. In **Asalatha’s case** a learned Single Judge of this Court referred to the complaint filed under Section 138 of the Act and stated that law does not insist that payee or holder in due course should personally file the complaint and hence his duly authorised Power of Attorney can file the complaint on behalf of payee or holder in due course. Going by the facts of that case it was not a case where complaint was filed by the Power of Attorney holder in his personal capacity but he signed the complaint for and on behalf of payee or holder in due course. I shall refer to the contentions raised in this case based on the above decision.
7. Going by the complaint, 'complainant' is the second respondent. Therefore, it may appear that complaint is not filed on behalf of Sarath Chandran but the second respondent in his personal capacity. But in the complaint, it is stated that second respondent is the Manager of M/s.S.S.Agencies, a proprietory concern of Sarath Chandran and that he is also the Power of Attorney holder of said
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Sarath Chandran. It is further stated in the complaint that by virtue of the said Power of Attorney, the complainant is representing the said Sarath Chandran as his true Power of Attorney and further the complainant is fully aware of the facts and contents of the case. In paragraph 2 of the complaint it is stated that the revision petitioner approached Sarath Chandran on 26.2.1994 for a loan of Rs.50,000/-. Therefore, it appears to me by a reading of the complaint that though name and address of the complainant is not very artistically stated and it would appear that second respondent has presented the complaint, in substance and essence complaint is preferred for an on behalf of the Principal, Sarath Chandran. Exhibit P1, Power of Attorney enabled the second respondent to sign the complaint on behalf of the said Sarath Chandran. Therefore inartistic description of the complainant notwithstanding, I am inclined to think that complaint was filed by the second respondent for an on behalf of his Principal. Moreover, it is to be borne in mind that Exhibit P2, photocopy of the cheque in question which is issued in the name of Sarath Chandran was also produced along with the complaint. That formed part of the complaint and hence has to be read along with the complaint. Viewed in that line, I am not persuaded to accept the
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contention that complaint is filed by the second respondent in his personal capacity and hence it is not maintainable.
## **Point No.2:**
8. So far as due execution of Exhibit P2, cheque is concerned, version of revision petitioner when questioned under Section 313 Cr.P.C. was that he purchased goods from M/s. S.S.Agencies owned by Sarath Chandran on credit basis, used to give signed blank cheques on such occasions and one such signed blank cheque was misused. Regarding the transaction, second respondent gave evidence as P.W.1 and claimed that he personally knows about the transaction and witnessed it. Learned counsel for revision petitioner would contend that Exhibit P8, copy of the complaint in O.S. No.639 of 1994 filed by Sarath Chandran against revision petitioner for realisation of money covered by Exhibit P2 would improbabilise the version of P.W.1 that he witnessed the transaction. According to learned counsel going by Exhibit P8, case pleaded by Sarath Chandran is that transaction was at his shop while according to P.W.1, transaction was at the house of Sarath Chandran.
9. It is true that a Power of Attorney holder cannot give evidence in substantiation of his Principal, but he can give evidence
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with regard to matters within his personal knowledge. Second respondent claimed that he is the Manager of Sarath Chandran and as proved by Exhibit P1, his duly authorised Power of Attorney as well. Therefore there is nothing unusual in his claiming that he witnessed the transaction. I went through Exhibit P8. Averments in Exhibit P8 are not to the effect that the transactoin was not at the house of Sarath Chandran.
10. There is yet another aspect which requires consideration. It is not disputed and proved by Exhibit P8 that for the amount covered by Exhibit P2, Sarath Chandran filed O.S. No.639 of 1994. Exhibit P7 is the copy of the written statement filed by the revision petitioner wherein liability under the transaction is specially admitted. When confronted with Exhibit P7, learned counsel for revision petitioner contended that admission contained in Exhibit P7 is not regarding the execution of the cheque, but the original transaction. But that contention cannot stand. It is seen from Exhibit P8 that it is specifically averred therein that for repayment of the amount due, revision petitioner issued the cheque in question. Revision petitioner has not explained the admission contained in Exhibit P7. Exhibit P7 is pro prio vigore evidence.
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11. It is pointed out by learned counsel that the amount stated in Exhibit P2 originally as Rs.30,000/- is seen corrected as Rs.45,000/-. But I find the correction is properly authenticated by the revision petitioner which is not under challenge. Due execution of the cheque is proved. Presumption under Section 139 of the Act is not rebutted. So far as the legality of recoverability of amount covered by Exhibit P2 is concerned, there is evidence of P.W.1 that the transaction was on 26.2.1994 and that it resulted in Exhibit P2.
12. It is true that copy of notice dated 14.7.1994 issued to revision petitioner is not seen marked in evidence on behalf of the second respondent. But no contention based on that is advanced. There is no case that notice did not intimate dishonour or, did not contain a demand for payment of amount. I have gone through the evidence and find no reason to interfere with the conviction.
## **Point No.3:**
13. So far as sentence is concerned, it is pointed out by counsel on both sides that decree has already been passed in O.S. No.639 of 1994 for realisation of the amount covered by Exhibit P2. Considering that and also the object of legislation, I am satisfied that simple imprisonment till rising of court will be sufficient punishment in
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the ends of justice. At the same time second respondent has to be compensated for the loss suffered by him by the dishonour of Exhibit P2.
Resultantly, revision petition is allowed in part in the following terms:
- (i) Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of the court.
- (ii) Revision petitioner is directed to deposit in the trial court for payment to the second respondent Rs.45,500/(Rupees Forty five thousand and five hundred only) within three months from this day failing which he shall undergo simple imprisonment for two months.
- (III) It is made clear that it will be sufficient compliance with direction contained in clause (ii) above if revision petitioner paid compensation to the second respondent through his counsel in the trial court and the second respondent filed a statement in the trial court though his counsel within the said period of three months acknowledging receipt of amount.
- (iv) Revision petitioner shall surrender in the trial court on
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16.3.2009 to receive the sentence.
Bail bond shall stand cancelled.
Criminal Miscellaneous Petition No.5931 of 2000 shall stand dismissed.
**THOMAS P.JOSEPH, JUDGE.**
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**THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.1128 OF 2000 ===================**
**O R D E R**
**10TH DECEMBER, 2008**
