Thoppil Mini Chitty Fund v. K.J. Thomas and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **CRL.A.No.1269 OF 2006** **AGAINST THE JUDGMENT IN CC NO.485/1996 DATED 08-06-2001 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, CHANGANASSERY (MOBILE, KOTTAYAM)** ## **APPELLANT/PETITIONER/COMPLAINANT:** **THOPPIL MINI CHITTY FUND,KAVALA CHANGANACHERRY REPRESENTED BY ITS, MANAGING PARTNER T.V.THOMAS.** ## **BY ADV. SRI.JOSE PALLATTUKARAN** ## **RESPONDENT/RESPONDENT/4TH ACCUSED AND STATE OF KERALA:** **1 K.J.THOMAS PARTNER, PALACKAL FINANCIAL CORPORATION, MARKET ROAD, CHANGANACHERRY, NOW RESIDING AT KUTTAMPEROOR HOUSE,, KURISUMMOODU P.O., CHETHIPUZHA, CHANGANACHERRY.** **2 THE STATE OF KERALA REPRESENTED BY BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** ## **R2 BY SRI.K.B.UDAYAKUMAR,SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1269/2006 2** ## **JUDGMENT** ## **Dated this the 1st day of December 2020** ... The appellant is the complainant in C.C.No.485 of 1996 on the file of the court of the Judicial Magistrate of First Class, Changanassery (Mobile, Kottayam). 2. The above case was filed by the appellant against six accused. Among them, two accused approached this Court by filing petitions under section 482 Cr.P.C and the case against them were already quashed. Accused Nos.1 to 3 were not available for trial and hence their case was splitted and numbered as C.C.No.846 of 2001. Fourth accused faced trial. 3. When this appeal came up for consideration, this Court directed the registry to get a report from the lower court ## **CRL.APPEAL No.1269/2006 3** to find out whether the accused numbers 1 to 3 faced trial subsequent to the impugned judgment in this case. As directed by this Court, the learned Magistrate as per letter dated 5.11.2020 informed that, on perusing the entire pending and disposed cases and the filing register before the court, the office of the learned Magistrate could not trace out the case records of C.C.No.485 of 1996 and the judgment dated 8.6.2001. I was not satisfied with the above report. Hence I again directed the registry to get a report from the court concerned about my query. Now the learned Magistrate sent a letter dated 6.11.2020, which is extracted hereunder: _“In obedience to the official memorandum, I may humbly submit that:-_ _On perusal of records, it is seen that, as per the direction of Hon'ble High Court in Crl.Appeal 1269/2005, the entire case records of C.C.485/1996 had been submitted before the Hon'ble High Court. As per the records of C.C.485/1996, it is revealed that_ ## **CRL.APPEAL No.1269/2006 4** _accused were arrayed as A1. Palackal Finance corporation market road, Changanassery, P.K.Cherian, A2.M/s.Palackal Finance corporation market road, Changanassery and A3.Joy Joseph, M/s. Palackal Finance corporation market road, Changanassery, A4. K.J.Thomas, partner, Palackal Financial corporation, Market road, Changanassery. As per the judgment of the court dated 8.6.2001, A4 was acquitted u/s.255(1) of Cr.P.C. and the case against A1 to A3 is refiled as C.C.846/2001. Going through the legible copy of the proceeding paper of C.C.485/1996, it is also revealed that on 7.3.2003, proceedings u/s.82 and 83 Cr.P.C were completed against A1 to A3 in C.C.No.846/2001 and a request was made before the Hon'ble Chief Judicial Magistrate, Kottayam for transferring the case to list of long pending cases._ _I would further like to submit my apology that the case records relating to C.C.846/2001, I could not be traced out even after giving the earnest effort on the part of staff members to trace out them. Without having the records of the case, I could not make a conclusive remark on the point that 'whether accused No.1 to 3 faced trial or not'._ _I may like to submit further that in connection with the construction of new court complex, by this time, the records, were shifted twice and some old back files kept in record room have been destroyed due to attack of white ants and matter was already reported to the Hon'ble court. So I request some more time to trace out the records in connection with C.C.846/2001. Hence, I humbly request your good self to grant one month time to trace out the_ **CRL.APPEAL No.1269/2006 5** _connected records relating to C.C.846/2001 on the file of this court and to submit the details called for vide under reference.”_ 4. It is a sorry state of affairs which has to be taken seriously by the Registrar (Subordinate Judiciary) of this Court. In several cases like this, whenever I call for reports from the lower court, the officers inform this Court that, the details of the splitted cases are not available before the lower court because the entire lower court records in such cases are forwarded to this Court in connection with the appeal pending before this Court. This is not the procedure to be adopted if a case is splitted and the trial against some of the accused is already conducted. A separate proceeding is necessary before the lower court as far as the splitted cases are concerned. Therefore, the Registrar (Subordinate judiciary) will issue appropriate **CRL.APPEAL No.1269/2006 6** directions to all the lower courts for maintaining the records about the splitted cases in accordance to law and in accordance to Criminal Rules of Practice. Anyway, since this appeal is pending before this Court from 2006 onwards, I decided to hear this appeal without waiting for any further report from the court below. 5. According to the complainant, the accused are personally known to him and the accused borrowed a sum of Rs.1,50,000/- to tide over the financial difficulty faced by the 1[st] accused firm. It is the case of the complainant that, the 1[st] accused issued two cheques bearing Nos. 325238 dated 18.1.1996 and bearing No.325262 dated 2.2.1996 for Rs.1,00,000/- and Rs.50,000/- respectively drawn on Indian Overseas Bank. When the cheques were sent for collection to Kottayam **CRL.APPEAL No.1269/2006 7** District Co-operative Bank, the same was dishonoured for want of ‘sufficient fund’ as per memo dated 3.4.1996. The complainant issued a statutory notice demanding the amount. On receipt of the notice, the accused requested the complainant to re-present the cheques on 1.6.1996 and assured that, the arrangement will be made to honour the cheques. Though the cheques were presented on the basis of the above assurance, It was again returned unpaid due to ‘insufficient balance’ vide memo dated 1.6.1996 of the Kottayam District Co-operative Bank. Thereafter, the complainant issued second notice on 13.6.1996 demanding payment of the amount covered by the dishonoured cheques. Though the 1[st] accused received the notice, he did not discharge the liability. The notice to the 2[nd] accused was returned as unclaimed and the 3[rd] and 5[th] **CRL.APPEAL No.1269/2006 8** accused refused to accept the notice. The 6[th] accused sent a reply stating that, himself and the 5[th] accused are not the partners of the 1[st] accused firm at that time and hence they are not liable. In spite of the notice, the accused refused to pay the amount and hence the prosecution was initiated by the complainant under Section 138 of the Negotiable Instruments Act. 6. To substantiate the case, the complainant examined one witness as PW1. Exhibits P1 to P10 are the documents marked on the side of the complainant. 7. After going through the evidence and documents, the trial court concluded that, the 4[th] accused is not guilty under Section 138 of the Negotiable Instruments Act. Accordingly, the 4[th] accused was acquitted. 8. Aggrieved by the above acquittal order, ## **CRL.APPEAL No.1269/2006 9** this criminal appeal is filed by the complainant. 9. Heard the learned counsel for the appellant. I also heard the learned Public Prosecutor. 10. The counsel for the appellant submitted that, the trial court acquitted the 4[th] accused mainly for two reasons. The counsel submitted that, the first ground is presentation of the cheques twice and issuance of two notices. The counsel submitted that it is covered by subsequent judgment of the Apex Court which says that, the same will not affect the prosecution under Section 138 of the Negotiable Instruments Act. The counsel submitted that, the second ground on which the trial court acquitted the 4[th] accused is by holding that, there is no proper authorization to the complainant to file this complaint. **CRL.APPEAL No.1269/2006 10** Exhibit P10 is the power of attorney produced by the complainant. There is no serious dispute or challenge against Ext.P10 power of attorney from the side of the accused. In such circumstances, the trial court erred in acquitting the 4[th] accused for that reason also. The counsel submitted that, it is a clear case in which the 4[th] accused committed the offence under Section 138 of the Negotiable Instruments Act. Therefore, the counsel submitted that, the finding of the trial court may be reversed. 11. The point for consideration in this case is whether the 4[th] accused committed the offence under Section 138 of the Negotiable Instruments Act. 12. In the light of the judgment of the Apex Court in **MSR Leathers v. S.Palaniappan and Another** [2013 KHC 4721] successive notice is ## **CRL.APPEAL No.1269/2006 11** inconsequential in a prosecution under Section 138 of the Negotiable Instruments Act. Simply because the complainant presented the cheques two or three times and issued statutory notice two or three times, the Apex Court observed that, for that reason alone, the accused cannot be acquitted. Therefore, the first reason mentioned by the trial court to acquit the 4[th] accused is not sustainable. 13. But as far as the 2[nd] point is considered, the trial court found that, PW1 who is examined on behalf of the company, deposed that, there are documents to show that, Sri.T.V.Thomas who signed the complaint is the Managing Partner of the firm. PW1 admitted that, no such document is produced before the court. Though he has given evidence that, the documents to prove this matter is available, nothing has been produced before **CRL.APPEAL No.1269/2006 12** the lower court. Hence, the trial court concluded that, when the competency of the signature to institute the complaint is challenged by the accused, it is incumbent upon the complainant to establish that fact by adducing satisfactory evidence. Therefore, the trial court found that, the complainant in this case has failed to establish that there is proper authorisation. 14. Moreover, the trial court also found that, the complainant has failed to establish that, the signatory to the complaint as well as PW1 examined on behalf of the complainant are competent to do so. The finding of the trial court on this point is extracted hereunder: _“6) Point Nos.1 & 2: Both the above points can be considered together conveniently. The complaint in this case is a firm represented by its Managing Partner and the persons who has given evidence on behalf of the complaint claim to be the power of_ **CRL.APPEAL No.1269/2006 13** _attorney holders of the Managing Partners of the firm. The competency of the signatory to the complaint and the person who were examined as PW1 on the side of the complainant is challenged by the 4[th] accused. According to the learned counsel for the 4[th] accused there is absolutely no material before this court to hold that the signatory to the complainant is the Managing Partner of the firm or he is competent to institute the complaint on behalf of the complainant firm. During the cross examination of PW1, examined on behalf of the complainant, specified questions were put as to whether there is any document to show that Sri.T.V.Thomas, who has signed the complaint in the Managing Partner of the firm. It is seen admitted by PW1 that no such documents has been produced. Though he has given evidence that documents to prove this fact is available and it will be produced nothing has been produced till date. When the competency of the signatory to institute the complaint is challenged by the accused it is incumbent upon the complainant to establish that fact by adducing satisfactory evidence. The complainant in this case has failed to discharge the above burden._ _7) PW1, examined on behalf of the complainant firm had deposed that he is the manager of that firm. He has deposed that the complainant firm had authorized him to conduct the case. A notary attested photocopy of the power of attorney executed in favor of PW1 is produced and marked Ext.P10. The marking of this document is seen objected by the learned counsel for the 4[th] accused and my learned predecessor has marked it subject to objection. As per the Notaries Act the_ ## **CRL.APPEAL No.1269/2006 14** _notary is not competent to certify a document as a true copy. The complainant ought to have produced the original power of attorney conferring authority to PW1 to conduct the case. In this context it is also worthwhile to mention that Ext.P10 document is seen executed by Sri.T.V.Thomas in his capacity as the Managing Partner of the Complainant firm. But as noted earlier there is no acceptable evidence to establish the fact that he is the Managing Partner. The best evidence regarding this fact, in the form of the partnership deed as well as the certificate issued by the Registrar of firm, in possession of the complaint is not forthcoming for reasons best know to them. So it is held that the complainant has failed to establish that the signatory to the complaint as well as PW1 examined on behalf of the complainant are competent to do so. Both these points are answered against the complainant._ 15. I see no reason to interfere with the above finding of fact by the lower court. The point was raised before the lower court and thereafter the trial court concluded that, there was no proper authorization. In such circumstances, I think, there is nothing to interfere with the above acquittal order passed by the lower court. **CRL.APPEAL No.1269/2006 15** Therefore,this criminal appeal is dismissed confirming the judgment dated 8.6.2001 in C.C. No.485 of 1996 on the file of the Judicial Magistrate of First class, Changanassery (Mobile, Kottayam). Registry will forward a copy of this judgment to the Registrar (Subordinate Judiciary) for the compliance of the directions in paragraph 4. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**