Self Employers Leasing & Finance Ltd., Branch Kottayam v. P.C. Vijayakumar and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935** **CRL.A.No. 62 of 2011 ( )** **------------------------** **AGAINST THE ORDER IN Crl.L.P..1083/2010 of HIGH COURT OF KERALA DATED 18-11-2010** **AGAINST THE JUDGMENT IN CC.912/2004 of J.M.F.C.-II (MOBILE), KOTTAYAM DATED 30-06-2010** **APPELLANT/COMPLAINANT:-** **---------------------** **SELF EMPLOYERS LEASING & FINANCE LTD., BRANCH KOTTAYAM, REPRESENTED BY THE BRANCH MANAGER P.P.JOSEPH.** **BY ADV. SRI.M.P.MADHAVANKUTTY** **RESPONDENTS/ACCUSED & STATE:-** **---------------------------** **1. P.C.VIJAYAKUMAR, HAREESREE, T.P.PURAM, VAZHOOR P.O., KOTTAYAM PIN 686001.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.M.P.ASHOK KUMAR R1 BY ADV. SRI.S.NANDAGOPAL R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE.** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**Kvs/-**_ ## **V.K. MOHANAN, J.** = = = = = = = = = = = = = Crl.Appeal No.62 of 2011. = = = = = = = = = = = = = Dated this the 25[th] March, 2013. ## **J U D G M E N T** 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 judgment dated 30.6.2010 in CC.No.912/2004 of the Court of the Judicial Magistrate of the First Class-II, Kottayam by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that connected with the loan transaction and on failure on the part of the accused paying the instalment and finally towards the discharge of such liability the accused issued Ext.P3 cheque, which was presenting for encashment dishonoured due to insufficiency of fund. **Crl.Appeal No.62/2011.** 2 3. The learned counsel for the appellant vehemently submitted that at the time of filing the complaint, the complainant has produced Exts.P1 and P2 photostat copies of certificate of Incorporation of the Company and the power of attorney executed in favour of Pw1. During the cross-examination, the accused challenged even the existence of the complainant company and also the authority of Pw1 and therefore the complainant preferred a petition under Section 311 of Cr.P.C. on 26.6.2010, a copy of which is furnished by the counsel to the accused. But the learned Magistrate without accepting the petition, denied the opportunity to the complainant to produce evidence, which approach of the learned Magistrate is illegal, improper and arbitrary. It is also the submission of the learned counsel that in spite of Ext.P8 delivery certificate dated 16.6.2003 to prove the service of statutory notice on the accused, the trial court erroneously concluded that there was no proper service of notice. Thus according to **Crl.Appeal No.62/2011.** 3 the learned counsel, on the above two grounds the order of the trial court is liable to be set aside and the accused is liable to be convicted for the offences charged against him. On the other hand counsel for the respondent vehemently submitted that petition dated 26.6.2010 was filed belatedly even though the appellant has got an ample opportunity to produce the documents. After the commencement of the trial no such opportunity was availed of and therefore the learned Magistrate is right in not acting upon the petition filed by the complainant. Counsel also submitted that there was no proper service of statutory notice on the accused and therefore the complainant has not complied with the statutory steps contemplated under Section 138 of the N.I.Act. 4. I have carefully considered the submissions of the learned counsel for the appellant and the respondents and I have perused the judgment of the trial court also. 5. In the light of the rival contentions and in the light **Crl.Appeal No.62/2011.** 4 of the evidence and materials produced, the learned Magistrate in the impugned judgment the question to be considered is whether the appellant is succeeded in making out a prima facie case in supporting its challenge against the findings of the court below and also the question to be considered is whether the appellant has succeeded showing any exceptional circumstances or substantial reason to interfere with the order of acquittal recorded by the trial court or the appellant had succeeded in showing that the judgment of the trial court is perverse. From the cause title of the impugned judgment it appears that the complainant is shown as “Self Employers Leasing & Finance Ltd, Branch Kottayam represented by the branch Manager P.P.Joseph”. But no particulars of the company mentioned to show it as a corporate body incorporated under the provisions of the Companies Act. The exact name of the company and the authority represented by the company and the place of the Head Quarters of the company are not **Crl.Appeal No.62/2011.** 5 disclosed from the address of the complainant company. If it is a company incorporated under the provisions of the Companies Act, the same can be represented only with the officials of the company as authorised under the memorandum of association and articles of association. From the cause title also it is not clear that who represent the company. Moreover, it is seen from the cause title that Self Employers Leasing & Finance Ltd, Branch Kottayam and not the company, but the same is represented by the branch Manager. If actually it was a company, the company can represent only the official by the company as stated above or by any person who is duly authorised by a resolution adopted by the Board of Directors of the company and to prove that the resolution of the Board of Directors has to be produced before the Court. That document is also not produced. So, according to me, even at the time of taking cognizance, the above documents, which are inevitable ought to have been produced by the **Crl.Appeal No.62/2011.** 6 complainant. However, only the photostat copies of the same were produced at the time of filing the complaint. On the basis of the submission of the learned counsel for the appellant it appears to me that the complainant felt the necessity of producing the original of the said documents, when the defence cross examined Pw1 about the existence of the complainant company. It is also pertinent to note that as per the schedule it appears that the trial was commenced on 24.8.2005, probably on the date on which the plea of the accused recorded. It is also relevant to note that the trial was closed on 28.6.2010. So, there is a gap of nearly five years from the commencement of the trial and its closure. Thus it can be seen that after the commencement of the trial, the complainant has got sufficient time to produce documents even before recording the evidence of Pw1. During that time they never produce the original of those documents. Before closing the evidence of prosecution, also they never attempted to ## **Crl.Appeal No.62/2011.** 7 produce the original of Exts.P1 and P2. So, there is serious lapse on the part of the complainant in producing necessary and vital documents to substantiate their claim, for which there is no explanation at all. In this juncture it is relevant to note that even according to the learned counsel, the learned Magistrate refused to accept the petition on 26.6.2010. But the complainant has not taken any steps against the said approach of the learned Magistrate and to challenge the same by invoking appropriate provisions of the law, before appropriate Forum. Thus there is negligence on the part of the complainant. The attempt of the complainant in producing the original documents of Exts.P1 and P2, itself would show that there was no sufficient evidence to substantiate the claim of the complainant and to prove the locus standi of Pw1 to launch the complaint. So, considering the above facts and circumstances, according to me, the findings of the learned Magistrate on point No.1 is correct and supported by 8 ## **Crl.Appeal No.62/2011.** evidence and materials and it cannot be said that the findings of the learned Magistrate is illegal or improper or irregular. 6. The learned Magistrate has also found that there was no proper service of notice on the accused. From the schedule appended to the judgment it appears that Ext.P8 was produced and the learned counsel submitted that the same was produced to show that there was a proper service of notice. But at the very same time it is relevant to note, no witness of postal department was examined to prove the content of Ext.P8. The appellant has no case that the service of notice on the accused has proved otherwise than by Ext.P8. To prove the exact service of notice on the accused/respondent, absolutely there is no legal evidence and according to me that mere production of Ext.P8 is not sufficient and the content of Ext.P8 should have been proved by examining the concerned officials of the postal department. Therefore, I find no reason to interfere with **Crl.Appeal No.62/2011.** **==> picture [7 x 10] intentionally omitted <==** the findings of the learned Magistrate against the complainant with respect to the service of notice. 7. Thus, going by the judgment of the trial court it can be seen that the judgment of the trial court is perfectly correct and the findings of the court below is based upon the available evidence and materials on record and therefore it cannot be said that those findings of the learned Magistrate is either illegal or perverse. 8. In a recent decision of the Apex Court reported in **Pudhu Raja & Another vs. State represented by Inspector of Police** [(2013) 1 SCC (Crl.) 430 = (2012) 11 SCC 1961], the Hon'ble Apex Court has held that, “14. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the 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 innocence, **Crl.Appeal No.62/2011.** 10 interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” On application of dictum in the present case, according to me, the appellant has miserably failed to make out a prima facie case in support his challenge against the findings of the court below and no compelling reasons or substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused. Therefore, the appeal fails. In the result, the above appeal is dismissed. **V.K. MOHANAN, (Judge)** **Kvs/-**