Suresh Antony v. Cherian A. Chacko and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF MAY 2018/1ST JYAISHTA, 1940** ## **Crl.Rev.Pet.No. 1240 of 2003 ( )** **---------------------------------** ## **CRA 184/2001 OF SESSIONS COURT,KOTTAYAM** ## **CC 116/1997 OF CHIEF JUDICIAL MAGISTRATE,KOTTAYAM** ## **---------------** ## **PETITIONER:** **---------------------SURESH ANTONY, AGED 38 YEARS, S/O. ANTONY, THEKKANATH HOUSE, PAZHANGANAD, KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT** **BY ADV. SRI.BIJU M.JOHN RENNY AUGUSTINE** **RESPONDENT(S): --------------------------** **1. CHERIAN A. CHACKO, ANDOOPARAMBIL, MANARCADU, KOTTAYAM** **2. STATE OF KERALA., REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-05-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## ALEXANDER THOMAS, J. ----------------------- Crl.M.A.No.1604 of 2018 in Crl.R.P.No.1240 of 2003 **==> picture [10 x 10] intentionally omitted <==** Crl.R.P.No.1240 of 2003 -----------------------nd day of May, 2018 O R D E R **==> picture [307 x 12] intentionally omitted <==** This is an application filed by the revision petitioner/accused to recall the impugned order dated 16.10.2017 rendered by this Court disposing Crl.R.P.No.1240 of 2003. 2. The above Criminal Revision Petition was filed by the applicant/accused to impugn the conviction and sentence imposed on him by the trial court which has been affirmed by the appellate Sessions Court. When the Criminal Revision Petition was listed for hearing, there was no representation on the part of the revision petitioner/accused. Notice issued on the Criminal Revision Petition on the respondent/complainant was not served and thereafter, the petitioner/accused had not taken any steps to serve notice on the respondent/complainant. This Court after consideration on the merits of the matter had disposed of the Criminal Revision Petition. Now it is stated in the above application that earlier one Sri.Biju.M.John, ::2:: Crl.M.A.No.1604/2018, etc. Advocate, was engaged by the revision petitioner/accused as his counsel for the institution and conduct of the above Criminal Revision Petition. It was only much later that the accused could know that his counsel had stopped practice and had gone abroad and this aspect was never known or intimated to the petitioner and the petitioner was totally unaware that the petitioner's counsel had not taken any steps for completing service of notice on the respondent/complainant and that the petitioner/accused was unrepresented at the time of final hearing and disposal of the Criminal Revision Petition. Notice on the above Crl.M.A.No.1604 of 2018 as well as on Crl.R.P.No.1240 of 2003 has been duly served on the respondent/complainant through the competent police authorities who have reported that the respondent/complainant is now abroad and that his mobile number has been traced out and that he has been duly intimated about the pendency of the present application and further that notice has been duly served on the respondent/ complainant through affixture. When the matter had come up for consideration on 20.3.2018, this Court had noted that notice has been duly served on the respondent/complainant, but had listed the case to today and had adjourned the case to a day after summer vacation to ascertain whether the ::3:: Crl.M.A.No.1604/2018, etc. respondent/complainant could enter appearance in the meanwhile. Today also when the matter has been taken up for consideration, there is no representation for that party though notice has been duly served on that party. 3. Heard Sri.Renny Augustine, learned counsel appearing for the applicant/accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for the respondent/State. 4. The scope and ambit of the powers conferred on this Court, more particularly under Section 482 of the Cr.P.C., to recall an order or judgment of this Court in criminal proceedings has been dealt with by the Apex Court in the decision in Vishnu Agarwal V. State of U.P. and another reported in 2011 (14) SCC 813 = AIR 2011 SC 1232 = 2011 KHC 4158, wherein it has been held by the Apex Court that where the accused could not avail the opportunity of hearing due to bonafide reasons, then notwithstanding the fact that the High Court has signed the order or judgment, this Court has the power, more particularly under Section 482 of Cr.P.C., to recall such a judgment or order in such criminal proceedings inasmuch as such judgment has been rendered not in consonance with the principles of natural justice, etc. It has been held by the Apex Court that in such situations, the bar under ::4:: Crl.M.A.No.1604/2018, etc. Section 362 of the Cr.P.C. not to review or alter a judgment after signing of the order, etc. will not apply inasmuch as recalling an order or judgment of a criminal court by the High Court in order to afford reasonable opportunity of being heard, etc. is not tantamount to review a judgment, etc. The distinction between recall of an order or judgment on the one hand and the review of the order, etc. has been dealt with by the Apex Court in the abovesaid Vishu Agarwal’s case (supra) as well as in Asit Kumar Kar v. State of West Bengal and others reported in (2009) 2 SCC 703. The Apex Court in the judgment in State of Punjab v. Davinder Pal Singh Bhullar and others reported in (2011) 14 SCC 770 has held in paragraph 46 thereof that in appropriate cases the High Court will have the power to recall an order or judgment in criminal proceedings which has been rendered without hearing the accused and that the bar under Section 362 of the Cr.P.C., will not stand in the way of this Court exercising powers to recall the judgment or order in criminal proceedings in such cases. This Court in the judgment in Pushpangathan v. State of Kerala reported in 2015 (3) KLT 105 has also dealt with the abovesaid aspects and has reiterated the legal position in that regard. In R.Rajeshwari v. H.N.Jagadish reported in (2008) 4 SCC 82, the Apex Court has considered the interpolate between the provisions ::5:: Crl.M.A.No.1604/2018, etc. under Section 362 of the Cr.P.C. and Section 482 of the Cr.P.C. and has held that the exercise of power under Section is warranted in rare cases so as to recall the judgment where the High Court may do so, when such a judgment or order in criminal proceedings has been secured by practicing fraud and that in such a situation, the statutory bar under Section 362 of the Cr.P.C. will not affect the powers of the High Court conferred under Section 482 of the Cr.P.C. for recalling the judgment on the ground of fraud, etc. 5. In the light of the abovesaid legal position well settled by the aforecited rulings, this Court has the power to recall a judgment in criminal proceedings which has been rendered without affording a reasonable opportunity of being heard to the accused, provided bonafide reasons are shown in that regard. In the instant case, it is not in dispute that earlier, the petitioner had engaged an Advocate for the conduct of this revision petition. It is brought to the notice of this Court that the said Advocate had stopped practice and had not issued any notice or intimation to the petitioner/accused that he had stopped practice and that he had to engage a new lawyer. In these circumstances, the submission made by the petitioner/accused that he was unaware that he when unrepresented at the time of final hearing of ::6:: Crl.M.A.No.1604/2018, etc. the above Criminal Revision Petition appears to be correct and genuine. Though notice has been duly served on the respondent/complainant, he has not come forward to oppose the plea in the present application. The plea for recalling the order is not opposed by the respondent/State as well. 6. In these circumstances, this Court is of the view that the applicant/accused has made out cogent grounds and accordingly, it is ordered that the impugned order dated 16.10.2017 rendered by this Court disposing of Crl.R.P.No.1240 of 2003 will stand recalled. The Crl.R.P. is restored to the file of this Court for fresh hearing. The application stands accordingly disposed of. Crl.R.P.No.1240 of 2003 : 7. The revision petitioner herein is the accused for the offence punishable under Section 138 of the N.I.Act in C.C.No.116 of 1997 on the file of the Chief Judicial Magistrate's court, Kottayam instituted on the basis of a complaint filed by the first respondent herein. Exhibit-P2 dishonoured cheque dated 17.12.1996 is for Rs.60,000/-. The trial court, as per the impugned judgment rendered on 9.4.2001, has convicted the petitioner for the abovesaid offence and has sentenced him to undergo simple imprisonment for six months and to pay fine of ::7:: Crl.M.A.No.1604/2018, etc. Rs.5,000/- with a default sentence clause of three months' simple imprisonment. The fine amount of Rs.5,000/- so recovered was directed to be paid as compensation to the complainant as per Section 357(1)(b) of the Cr.P.C. The petitioner has preferred Criminal Appeal No.184 of 2001 before the Sessions Court, Kottayam. The appellate Sessions Court as per the impugned judgment rendered on 24.2.2003 has dismissed the abovesaid Criminal Appeal and thereby confirmed the conviction and sentence. It is aggrieved by these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Petition. The contentions of the revision petitioner was earlier rejected by this Court and the Criminal Revision Petition was earlier disposed of on 16.10.2017. Thereafter, the said order dated 16.10.2017 in the above Criminal Revision Petition has been recalled by this Court and the Criminal Revision Petition has been restored to the file of this Court for fresh hearing. Though notice has been duly served on the respondent/complainant, there is no appearance for that party. 8. Heard Sri.Renny Augustine, learned counsel appearing for the revision petitioner/accused, and Sri.Saigi Jacob Palatty, learned prosecutor appearing for the second respondent/State. ::8:: Crl.M.A.No.1604/2018, etc. 9. The case of the complainant is to the effect that he had advanced an amount of Rs.2,70,000/- to the accused and in discharge of the said liability, the accused had issued a cheque dated 6.12.1996 for Rs.2,10,000/- and another cheque dated 17.12.1996 for Rs.60,000/-, thus totalling to Rs.2,70,000/- That both the abovesaid cheques when presented were dishonoured due to insufficiency of funds. That the complainant had caused to issue Ext.P-3 statutory demand notice dated 4.2.1997 calling upon the accused to pay the amount covered by the dishonoured cheque within the stipulated time. That without making the said payment, the accused had sent Ext.P-6 reply notice dated 12.2.1997 raising untenable contentions denying the liability and that thereafter the complainant has filed the present complaint on 26.2.1997 alleging that the accused has committed offence punishable under Sec.138 of the Negotiable Instruments Act, etc. 10. It is relevant to note that none of the details regarding the alleged transaction between the complainant and the accused, which gives rise to the alleged liability, have not even been remotely stated in the complaint or in Ext.P-3 statutory demand notice. Whereas the specific defence set up by the accused in Ext.P-6 reply notice dated ::9:: Crl.M.A.No.1604/2018, etc. 12.2.1997 is to the effect that the complainant had entrusted the responsibility of constructing a building in his property with the petitioner, who is a building contractor, and that for the purpose of raising money for constructing the building in the above said complainant's property, the complainant had executed Ext.P-1 power of attorney dated 20.6.1995 appointing the petitioner a power of attorney holder in order to execute necessary documents with the Kottayam District Co-operative Agricultural Development Bank for securing loan after offering necessary securities of the petitioner. That on the said application submitted on behalf of the complainant through the accused, the Co-operative Bank concerned had sanctioned a loan of Rs.1 lakh in favour of the complainant and that earlier the building construction was not started. That on 29.11.1996, the complainant and the accused had arrived at a settlement as the complainant did not want to proceed with the construction of the building as he wants to sell off the property and the understanding was that the accused should refund the amount of Rs.2,70,000/- given as advance to him by the complainant for the above said construction purpose and then in that regard the accused had issued the above said 2 cheques dated 6.12.1996 for Rs.2,10,000/- and the present Ext.P-2 cheque dated ::10:: Crl.M.A.No.1604/2018, etc. 17.12.1996 for Rs.60,000/- for refunding the said advance. That later, before presentation of the above said cheque, the complainant had come to the accused's residence on 6.12.1996 and had informed that he wants to proceed with the construction of the building and the accused should start the construction work in that regard. That when the accused demanded the return of 2 cheques, the complainant assured him that the above said 2 cheques will not be presented and the understanding was that the said cheques would be retained by the complainant as security for fulfillment of the terms of the building construction by the accused. That for the period from December, 1996 and January, 1997, the accused had proceeded with the construction and major part of the construction was over before the end of January, 1997. That the Co-operative Bank had disbursed a total amount of Rs.75,000/- to the complainant as they were satisfied that major part of the construction except the final part was over. That the contention of the complainant that the accused owes Rs.2,70,000/- to the complainant, etc., is incorrect and false inasmuch as he has completed the works to the value of more that Rs.2,84,000/- and that the above said demand notices for the 2 dishonoured cheques have been issued on untenable grounds, etc. ::11:: Crl.M.A.No.1604/2018, etc. 11. One of the contentions raised by the petitioner-accused was to the effect that pursuant to Ext.P-1 power of attorney dated 20.6.1995 executed by the complainant in favour of the accused, the accused had made necessary applications before the co-operative bank for sanction of the loan which resulted in Ext.D-2 loan sanction order dated 23.4.1996 whereby the said Co-operative Bank had sanctioned a total amount of Rs.1 lakh to the complainant. Ext.D-2 would show that an amount of Rs.25,000/- would be disbursed at the initial stage and later an amount of Rs.50,000/- will be disbursed at the stage prior to the completion of the roofing and thereafter the balance amount of Rs.25,000/- will be disbursed after the completion of the roofing work, etc. Ext.D-3 is the loan agreement dated 23.4.1996 executed by the power of attorney holder for and on behalf of the complainant in the former's capacity as latter's power of attorney with the Kottayam Cooperative Agricultural Development Bank in respect of the loan sanctioned by Ext.D-2. As regards Exts.D-2 & D-3, it has been clearly admitted by PW-1 in his cross-examination that an amount of Rs.75,000/- was actually disbursed in the above said loan transaction by the Co-operative Bank. On this basis, the specific contention of the accused that the very fact that a total amount of Rs.75,000/- was ::12:: Crl.M.A.No.1604/2018, etc. actually disbursed by the Co-operative Bank prior to Exts.D-2 & D-3 would clearly show that substantial part of the construction was over as the specific condition in Ext.D-2 sanction order is that the bank would disburse the 2nd instalment of loan only after the completion of the work up to the roofing. Therefore, it is contended that the story put up by the complainant that the accused has not done any construction work and he is liable to refund the entire Rs.2,70,000/- is highly improbable and factually incorrect. Whereas the version given by the accused that the above said 2 cheques including the present cheque for Rs.60,000/- was kept by the complainant only as security in the above said arrangement between the parties. The accused would further argue that in respect of the first dishonour of cheque dated 6.12.1996 for Rs.2,10,000/-, the complainant had initiated a separate complaint as C.C.No.115/1997 before the very same trial court (Chief Judicial Magistrate Court, Kottayam), which resulted in complete exoneration of the accused as per Ext.D-5 judgment dated 20.9.2000 in C.C.No.115/1997 on the file of the Chief Judicial Magistrate Court, Kottayam. That the above said judgment of acquittal as per Ext.D-5 has been rendered on identical fact situation prior to the evidence tendered in the present case and Ext.D-5 case is almost the same. Various other grounds are also raised ::13:: Crl.M.A.No.1604/2018, etc. by the petitioner for urging that the impugned judgment of conviction and sentence imposed on the petitioner is vitiated by illegality and impropriety. 12. Sri.Renny Augustine, learned counsel for the petitioneraccused had elaborately taken this Court through the materials on record including the pleadings in the complaint, statutory demand notice, reply notice and various other documents produced by the prosecution and defence as well as through the depositions of PW-1 and DWs-1 to 3. 13. After anxiously considering all the relevant aspects and after perusal of the entire case records, this Court is of the considered view that both the courts below have egregiously erred in convicting the petitioner and in not taking into consideration the relevant and crucial aspects of the matter. That this Court is of the considered opinion that if relevant and crucial aspects have been taken into consideration by the courts below, then certainly the only course of action was to acquit the accused for the alleged offence. Moreover, Ext.D-5 is a judgment of the very same trial court with an identical complaint and which is based on the very same set of factual transactions which has ended in full exoneration of the petitioner and ::14:: Crl.M.A.No.1604/2018, etc. whereby the petitioner has been acquitted in C.C.No.115/1997. In view of the above said aspects, this Court is of the considered view that the impugned judgments are illegal and wrong and the accused is entitled for acquittal for the following reasons:- (A) In response to the complainant's Ext.P-3 statutory demand notice dated 4.2.1997 the petitioner - accused as given the reply as per Ext.P-6 dated 12.2.1997 the details of which are narrated hereinabove. Ext.P-3 demand notice is bereft of any details regarding the alleged transaction between the parties. Whereas the petitioner-accused has given the full details of the transaction between the parties as per his version, which have been adequately projected in Ext.P-6 reply notice. In spite of various aspects projected in Ext.P-6 reply notice, the complainant has chosen to remain silent in his complaint dated 26.2.1997 regarding any of the aspects relating to the alleged transaction between the parties, which has resulted in the alleged liability, which is the subject matter of the dishonoured cheque in question. The only averments in the complaint dated 26.2.1997 regarding the alleged transaction between the parties is contended in para 3 of the impugned complaint which reads as follows: “3. That the accused received amount from the complainant and issued two cheques for the settlement of accounts.” ::15:: Crl.M.A.No.1604/2018, etc. 14. The complainant has no case whatsoever that the above said transactions occurred in relation to the building contract between the parties, etc. What is projected in para 3 of the complaint is as if the accused had borrowed an amount of Rs.2,70,000/- and that the former had issued the 2 cheques in question for discharge of the alleged liability, etc. When the accused has given all the details of the alleged transaction between the parties as per his version in Ext.P-6 reply notice dated 12.2.1997, this Court is not in a position to understand as to why the complainant has chosen to remain silent in his complaint dated 26.2.1997. In the judgment of this Court in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233 = 2016 (4) KHC 901, this Court dealt with a case wherein the complaint was completely silent about the nature of the transaction, date of transaction, date on which the moneys were allegedly given by the complainant to the accused, the date on which the cheque in question was given by the accused to the complainant, etc. This Court held in para 18 of the said judgment that there was only bald statement that the revision petitioner therein had issued the cheque for Rs.2.55 lakhs for discharge of the alleged debt and there was no explanation on those aspects in the statutory demand notice. This Court held that suppression of material facts relating to the alleged transaction ::16:: Crl.M.A.No.1604/2018, etc. in the demand notice as well as in the complaint is an artifice used by certain litigants, the intention of which is very clear, that they want to develop a story after knowing the defence that may be set up by the opposite party and that the doors of the court should be closed to such fortune seekers. This Court in para 20 of the decision in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, has further held that in a criminal complaint the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet and rebut the case against him. But that unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution of India. It was categorically held by this Court that an accused in a complaint case filed under Section 142 of the Act also is entitled to know before the trial the particulars of the accusation against him and suppression of these particulars in the complaint alone is sufficient to order his acquittal. It will be profitable to refer to paras 18 & 20 of the decision in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, which read as follows (see KLT report): ::17:: Crl.M.A.No.1604/2018, etc. "18. Before she filed the complaint the second respondent sent Ext.P4 statutory notice to the revision petitioner informing him about the dishonour of the cheque and demanding payment of the amount covered by it. Neither the nature, nor the date of the transaction between the parties nor the date of issuance of the cheque was disclosed in it. There was only a bald statement that the revision petitioner issued a cheque bearing the date 11.1.1999 for Rs.2,55,000/- in discharge of a debt. There is no explanation why these material facts were not disclosed in the statutory notice. Suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear. They want to develop a story after knowing the defence that may be set up by the opposite party. The doors of the court should be closed to such fortune seekers. ## xxx xxx xxx 20. In a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution. An accused in a complaint case filed under Section 142 of the Act also is entitled to know before the trial the particulars of the accusation against him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal.” It is further relevant to note that in a similar situation dealt with by the Apex Court in the decision in Vijay v. Laxman & anr., reported in (2013) 3 SCC 86, wherein the allegation of the complainant was that the liability of the accused was arising from the loan transaction but the complainant had not produced any materials to prove the transaction and the date on which the loan was demanded and advanced, etc. Accordingly, the Apex Court held that the absence of the details as ::18:: Crl.M.A.No.1604/2018, etc. regards the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance and further that the standard of proof required for rebutting the presumption under Sec.118 of the N.I.Act is not as high as that required by the prosecution, etc. 15. In the instance case, the power of attorney holder of the complainant would make it clear that none of the rudimentary aspects between the parties which led to the criminal complaint like the date of transaction, date on which the moneys were allegedly given by the complainant to the accused, the date of handing over of the cheques in question by the accused to the complainant, etc., are remotely silent in the complaint. Whereas the version of the complainant as regards the details of transaction as projected in Ext.P-6 reply notice, the date on which the accused had handed over the cheque are completely suppressed in the complaint. The said suppression of fact has to be viewed seriously and in view of the decision of this Court in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, this Court is of the view that the accused is entitled for the benefit of acquittal and it is accordingly so ordered. ::19:: Crl.M.A.No.1604/2018, etc. (B) It is admitted case of the complainant that the complaint has been instituted not by the complainant personally but through his wife's brother on the basis of Ext.P-1 power of attorney executed by the complainant in favour of that person. Ext.P-1 power of attorney appears to be a general authorisation given by the complainant to his attorney. The relevant aspects regarding the present criminal complaint proceedings are referred to in para 13 of the Power of Attorney, which reads as follows: “13. To ask, demand and realise the amounts due to me from Suresh Antoney, S/o. Antoney, Thekkenathu, Pazhagnattu Kara, Kizhakkambalam Village, now residing at Room No.208 Hotel Floral Park, Gandhi Nagar P.O., Kottayam and to file any suit or criminal complaints in competent courts, if necessary for the realisation of amounts due to me from him and to do all lawfull acts, deeds and things including the signing and filing of plaints, complaints, petitions etc and verify the same and to do all things as effectively as I could do if I were personally present, and also to settle the transaction with him.” 16. There is no recital anywhere in the Power of Attorney that the Power of Attorney is personally having knowledge regarding the alleged transaction between the parties and subsequent aspects regarding the issuance of cheques and its dishonour. More importantly, PW-1, Power of Attorney, has not stated in the complaint or anywhere in his evidence given before the court below that he has direct knowledge about the transaction between the parties and he has the ::20:: Crl.M.A.No.1604/2018, etc. competence to tender evidence in that regard. Whereas on the other hand it is candidly admitted by PW-1 in his cross-examination that he does not aware about the details of the payments which have been allegedly made by the complainant to the accused or regarding the other aspects relating to the building contract. Further, he has clearly admitted that he is not personally involved in the building construction activity which has been undertaken by the accused. It is not in dispute that the complainant has not bothered to give any evidence in this case. 17. A Three-Judge Bench of the Apex Court in Narayanan v. State of Maharashtra reported in (2014) 11 SCC 790 = 2013 (4) KLT 21 (SC), has held that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Sec.138 of the N.I. Act and that explicit assertion as to the knowledge of the power of attorney holder about the transaction in question must be specifically stated so in the complaint. It was held that where the power of attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, then he is certainly competent to depose evidence regarding the various transactions in that case. But that, neverthless, an explicit assertion as to the knowledge of the power ::21:: Crl.M.A.No.1604/2018, etc. of attorney holder about the transaction in question must be specifically averred in the complaint itself. It has been further held by the Apex Court in the case in Narayanan A.C & anr. v. State of Maharashtra & ors. reported in AIR 2015 SC 1198 = 2015 (1) KLD 217 (SC), that when an employee of a company files a complaint on behalf of the company, he should know everything about the transaction in question and the said employee should be specifically authorised by the Managing Director or Director to proceed with the complaint, etc. So it is now too well established that the power of attorney holder can be said to be competent to tender evidence in a case like this only if he is personally aware of the transaction in question and the factum in that regard about his personal knowledge should be explicitly recited in the complaint itself. In the instant case, nowhere in the complaint has it been averred or stated that the power of attorney holder has a personal knowledge about the transaction in question. On the other hand, the power of attorney holder (PW-1) has candidly admitted that he is completely ignorant of the transaction in question as stated hereinabove. Therefore, the complainant, who is alleged to have personal knowledge regarding the transaction in question has not bothered to tender evidence in this case. There is no acceptable and admissible evidence worth name to prove and establish the ::22:: Crl.M.A.No.1604/2018, etc. alleged case of the complainant in this case. On this short ground alone the accused is entitled for the benefit of acquittal and it is accordingly, so ordered. (C) The details of the specific defence taken up by the accused in Ext.P-6 reply notice has already been stated hereinabove. Ext.P-1 is the Power of Attorney dated 20.6.1995 executed by the complainant in favour of the accused whereby the accused has been authorised to submit documents and other applications before the Kottayam Co-operative Agricultural Development Bank so as to enable the complainant to avail loan of Rs.1 lakh for constructing a building in his property by offering the said property as security to the said bank. Ext.D-2 is the loan sanction order dated 23.4.1996 in that regard. Ext.D-3 is the loan agreement dated 23.4.1996 entered into by the petitioner-accused in his capacity as power of attorney holder with the Kottayam District Co-operative Agricultural Development Bank in order to enable the complainant to get sanction of the said loan. As per Ext.D-2 sanction order dated 23.4.1996 a total amount of Rs.1 lakh was sanctioned in favour of the complainant for the above purpose. A mere perusal of Ext.D-2 sanction order would make it clear that an amount of Rs.25,000/- will be disbursed directly at the first instance and thereafter an amount of Rs.50,000/- at the stage of ::23:: Crl.M.A.No.1604/2018, etc. completion of the stage up to roofing. Thirdly and finally the balance amount of Rs.25,000/- will be disbursed at the stage of completion of the work. It has been clearly admitted by PW-1 in his evidence given at the time of cross-examination that an amount of Rs.75,000/- was actually disbursed in the above process. A mere perusal of Exts.D-2 & D-3 would make it clear that the Co-operative Bank would release the second instalment of Rs.50,000/- only after the completion of the work up to the stage of roofing and that the Co-operative Bank would disburse the amount only after satisfying the said condition. Since it is admitted by PW-1 that the first two instalments totalling to Rs.75,000/- was actually disbursed, it would clearly show that substantial part of the construction activity has been duly completed. Both the courts below have not placed reliance on Exts.D-2 & D-3 on the ground that no evidence has been tendered through the bank officers that they have inspected the property and they were satisfied with the work. Exts.D-2 & D-3 were marked through the accused, who has produced the same at the time of crossexamination. The counsel for the complainant has not raised any challenge as to the genuineness and correctness of Exts.D-2 & D-3. Therefore, since the aspect relating to Exts.D-2 & D-3 have been remained unrebutted, it is only to be held that the admitted amount of Rs.75,000/- ::24:: Crl.M.A.No.1604/2018, etc. would have been disbursed in this case only after the bank has been satisfied with partial construction of the building. This would totally cut out the root of the case of the complainant that no construction whatsoever has been done by the accused and that the complainant is entitled to get refund of the amount given to the accused. When the above said assertion of the complainant is thus seriously demolished, it is only to be held that the accused has been successful enough to rebut the statutory presumption arising under Sec.138 & 118 of the N.I.Act. Therefore, the presumption disappears and in such a case, the complainant is under the legal burden to prove his case beyond reasonable doubt as in other criminal trial. But no factul evidence worth name has been tendered on behalf of the complainant to prove his case. No direct evidence has been pressed into service in this case. The complainant has not chosen to examine himself in this case. In these circumstances, it is only to be held that since the accused has been successful enough to rebut the statutory presumption and as the complainant has not proved his case thereafter, it is only to be held that the accused is entitled to the benefit of acquittal. (D) It is to be noted that the present complaint and the complaint in Ext.D-5 C.C.No.115/1997 are arising out of the very same factual transaction between the parties. The very same criminal court ::25:: Crl.M.A.No.1604/2018, etc. (Chief Judicial Magistrate Court, Kottayam), has fully exonerated the petitioner in C.C.No.115/1997 as can be seen from Ext.D-5 judgment dated 20.9.2000. It is asserted by the complainant that the said judgment of acquittal has become final and conclusive as the complainant has not chosen to challenge the judgment of acquittal in appeal, etc. A bare perusal of Ext.D-5 judgment would show that the nature of the allegations and the evidence adduced in both the cases are almost identical and similar. The learned Chief Judicial Magistrate has liberally considered the evidence and has held that the accused is entitled to the benefit of acquittal in C.C.No.115/1997 as per Ext.D-5 judgment dated 20.9.2000. The accused has raised a specific contention that he has sought for joint trial with the present C.C.No.116/1997 and that the said plea has been rejected by the trial court. Since both the cases are emanating from identical fact situation, the trial court was under the bounden duty to consider the plea for joint trial which has been made by the accused. The order rejecting the plea for joint trial in this case is a grave illegality as it is seriously prejudice the accused. In this regard, it is relevant to note that the petitioner-accused has marked Ext.D-7 series of bills for the purchase of cement and other materials as well as Ext.D-8 series of copies of the accounts made by way of entries in the diary of the petitioner-accused. ::26:: Crl.M.A.No.1604/2018, etc. Exts.D-7 & D-8 have been marked through DW-1 accused. Though in cross-examination the counsel for the complainant has raised some challenge as against the genuineness of Ext.P-7 bills, the complainant has not raised any objection whatsoever as against Ext.D-8 series-copies of accounts, made by way of entries in the diary of the petitioner. Therefore, it is only to be held that the complainant has no objection whatsoever as against Ext.D-8 series of accounts which would go to show that the petitioner has done substantial part of the work. 18. In the light of these aspects, this Court is of the considered view that the impugned judgments of both the courts below suffer from grave illegality and the courts below have not taken into consideration the crucial and relevant aspects of the matter which are dealt with hereinabove. If those aspects are taken into consideration, it would have resulted in acquittal of the accused. Therefore, the said judgment are illegal and improper and liable to be interdicted. Accordingly, it is ordered that the impugned judgments of both the courts below will stand set aside and the accused will stand acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act and he is set at liberty. 19. Sri.Renny Augustine, learned counsel for the petitioneraccused would submit that during the pendency of the present Criminal ::27:: Crl.M.A.No.1604/2018, etc. Revision Petition, this Court has granted interim order dated 28.5.2003 directing to suspend the execution of the impugned sentence on condition of the petitioner executing a bond for Rs.10,000/- with two solvent sureties each for the like sum to the satisfaction of the trial court within 15 days and to deposit half of the cheque amount within a period of 30 days, etc. The Office of the Chief Judicial Magistrate, Kottayam, had informed earlier that the revision petitioner has remitted an amount of Rs.15,000/each on 22.9.2003 & 11.8.2003 thus totalling to Rs.30,000/- in this case. If that be so, the entire amount in that regard so deposited by the petitioner in relation to this case shall be immediately refunded by the Chief Judicial Magistrate Court, Kottayam to the petitioner. An application may be made in that behalf by the petitioner-accused before the Chief Judicial Magistrate, who shall ensure that the amount of Rs.30,000/- is refunded to the petitioner. The Registry will forward a copy of this order to the Chief Judicial Magistrate Court, Kottayam, for necessary information. With these observations and directions, the above Crl.R.P. will stand allowed as indicated hereinabove. Sd/- ALEXANDER THOMAS, Judge. Csl/bkn // True copy // P.A to Judge//