High Court of KeralaSingle Judge2015-09-09Revision petition dismissed and fine payment pe...

Vincent Perera v. State of Kerala

Case / Petition Number:Crl.R.P.No.209 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2015-09-09
Court Decision / Holding: The revision petition stands dismissed. The High Court affirm held that the prosecution proved the offence under Section 138 NI Act and that the service of notice was valid. The court allowed three months to pay the fine as directed, and did not interfere with the concurrent findings of guilt and sentence.
Final Disposition: Revision petition dismissed and fine payment period granted

Parties to the Case

Appellants / Petitioners

Vincent Perera S/o Kunjachhan, A.C. Mechanic, Electrical and A/C Wing, Southern Railway Wing, Central Railway Station, Thiruvananthapuram

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Shaji Wilfred, S/o Wilfred, Kinattuvilakam Veedu, Valiyathura Vallakkadav u P.O., Thiruvananthapuram (represented by Power of Attorney Holder Pilomina Raju)

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Shajin S. Hameed

Counsels for Respondents

• Sri.V.S. Sreejith (Public Prosecutor)
• Sri.Latheesh Sebastian

Case Synopsis & Summary

This case is a Criminal Revision Petition arising from S.T.105/2008 before the Judicial Magistrate of First Class, Thiruvananthapuram (Special Court for Mark List cases), and the subsequent conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881. The trial court convicted him for issuing six cheques to discharge a liability, with one cheque (Ext.P3) for Rs. 50,000 presented and dishonoured for insufficiency of funds. The revision petitioner challenged the conviction on multiple grounds, including the assertion that PW1—the complainant’s power of attorney holder—lacked direct knowledge of the transaction, and thus should not have been examined; reliance was placed on Narayanan v. State of Maharashtra to argue that the POA holder must have direct knowledge to testify. The court considered both the complaint and accompanying affidavit alleging direct knowledge by the POA holder sufficient. It also addressed service of the statutory notice: Ext.P6 showed the notice was unclaimed, yet deemed service was held valid. The courts below found that the cheque was signed and issued as contemplated under Section 138 NI Act, and that the evidence supported guilt. The High Court affirmed the conviction and the appellate court’s sentence modification, ultimately dismissing the revision petition while granting a brief period to pay the fine. The decision preserves the concurrent factual findings and sustains the conviction and default sentence.

Provisions of Law Cited

Section 138, Negotiable Instruments Act, 1881

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contended that PW1 was only the power of attorney holder and did not disclose direct knowledge of the transaction in the complaint. Reliance was placed on Narayanan v. State of Maharashtra to contend that a POA holder without knowledge cannot be cited as a witness. It was argued that the complaint did not specify direct knowledge by the POA holder, and that service of notice may be defective because Ext.P6 showed the notice as unclaimed. The petitioner urged acquittal on these grounds, and challenged the sufficiency of the evidence linking the accused to Ext.P3. respondents: The prosecution contended that PW1’s affidavit, coupled with the complaint, established direct knowledge and authority of the POA holder, satisfying Narayanan. It argued that the cheque transaction and the dishonour were proven through Exts. P1–P8, with the statutory notice properly served or deemed served under Ext.P6. The concurrent findings of the trial and appellate courts should be respected in light of the evidence demonstrating the accused’s liability under Section 138 NI Act.

Contentions of Respondents

The State, represented by Public Prosecutor, supported the conviction; counsel for R2 argued that the POA holder had knowledge evidenced by the affidavit, and that the notice was effectively served by deemed service.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Narayanan v. State of Maharashtra	2013 (4) KLT 21 (SC)	Positive	Cited to assert that knowledge of the POA holder must be explicit in the complaint; the court noted Narayanan but held that the accompanying affidavit sufficed to show direct knowledge, thus relying on the principle stated in Narayanan.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 9TH DAY OF SEPTEMBER 2015/18TH BHADRA, 1937 Crl.Rev.Pet.No. 209 of 2015 () ------------------------------CRA 254/2010 of I ADL.SESSIONS COURT., THIRUVANANTHAPURAM S.T.105/2008 of JMFC-V, THIRUVANANTHAPURAM (SPL.COURT-MARKLIST CASES) ## REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------- VINCENT PERERA S/O.KUNJACHAN, A.C.MECHANIC, ELECTRICAL AND A/C WING SOUTHERN RAILWAY WING, CENTRAL RAILWAY STATION THIRUVANANTHAPURAM. BY ADV. SRI.SHAJIN S.HAMEED ## RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. SHAJI WILFRED, S/O.WILFRED, KINATTUVILAKAM VEEDU, VALIYATHURA VALLAKADAVU P.O., THIRUVANANTHAPURAM REPRESENTED BY HIS POWER OF ATTORNEY HOLDER PILOMINA RAJU, KINATTUVILAKAM VEEDU, VALIYATHURA VALLAKADAVU P.O., THIRUVANANTHAPURAM, PIN: 695 008. R2 BY ADV. SRI.M.FATHAHUDEEN R2 BY ADV. SRI.LATHEESH SEBASTIAN R1 BY PUBLIC PROSECUTOR, SRI.V.S.SREEJITH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-09-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P.No.209 of 2015 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of September 2015 ## O R D E R The revision petitioner is the accused in S.T. No.105 of 2008 on the files of the court of the Judicial Magistrate of First Class-V (Special court for Mark List cases), Thiruvananthapuram. 2. The court below convicted the accused under Section 138 of the Negotiable Instruments Act (for short ‘the N.I. Act’) and sentenced him thereunder to imprisonment till the rising of the court and a fine of Rs.55,000/- with a default clause for simple imprisonment for five months. In the appeal filed against the said conviction and sentence, the lower appellate court as per Crl.R.P.209/2015 : 2 : judgment in Crl.Appeal No.254 of 2010 confirmed the conviction and sentence passed by the trial court under Section 138 of the N.I.Act. However, the default sentence was modified and reduced to one month. Aggrieved by the said conviction and sentence, the revision petitioner has filed this revision petition. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 4. The prosecution allegation is that the revision petitioner borrowed an amount of Rs.3,00,000/- from the complainant and towards the discharge of the said liability, the revision petitioner issued six cheques. Ext.P3 is one of the said cheques issued by the revision petitioner towards the partial discharge of the liability of the revision petitioner to the complainant. Ext.P3 is for an amount of Crl.R.P.209/2015 : 3 : Rs.50,000/- The complainant presented the said cheque for encashment. However, the same was dishonoured due to insufficiency of funds in the account of the revision petitioner. Statutory notice was issued to the revision petitioner. However, the revision petitioner did not accept the said notice and hence the said notice was returned as unclaimed. The revision petitioner did not make payment of the cheque amount within the statutory period or thereafter. 5. Before the court below, PW1 and PW2 were examined and Exts.P1 to 8 were marked for the complainant. Ext.D1 was marked for the revision petitioner. The learned counsel for the revision petitioner has argued that PW1 is only the power of attorney holder of the complainant, who did not state in the complaint that Crl.R.P.209/2015 : 4 : she had direct knowledge about the transaction in this case and in the said circumstances, it has to be held that PW1 had no direct knowledge with regard to the transaction and consequently, her evidence cannot be accepted to bring home the guilt of the revision petitioner. The learned counsel relied on the decision of the Apex Court in **Narayanan v. State of Maharashtra** [2013 (4) KLT 21 (SC)] to buttress his argument. In **Narayanan** (supra), in paragraph 26, it was held by the Apex Court that it is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness. Crl.R.P.209/2015 : 5 : 6. In this case, it is not mentioned in the complaint that the power of attorney holder was having direct knowledge with regard to the transaction in this case. However, an affidavit was also filed by the power of attorney holder of the complainant in which it is clearly stated that the power attorney holder had direct knowledge regarding the facts of the case. Both the complaint and the affidavit were filed before the court on the same day. Therefore, the statement in the affidavit filed along with the complaint that the power of attorney holder was having direct knowledge with regard to the transaction, is sufficient to comply with the direction of the Supreme Court in **Narayanan** (supra). In the said circumstances, the argument advanced by the learned counsel for the revision petitioner in this regard fails. Crl.R.P.209/2015 : 6 : 7. The learned counsel has further argued that the revision petitioner was not served with the notice issued on behalf of the complainant and in the said circumstances, he is entitled to acquittal. Ext.P6 is the registered letter addressed to the revision petitioner. There is an endorsement by the postal authority in Ext.P6 to the effect that intimation was given to the revision petitioner. There is another endorsement to the effect that the said letter was “unclaimed”. In the said circumstances, the same was returned as “unclaimed” by the postal authorities. In the absence of any material before the court inconsistent with the endorsement in Ext.P6, it has to be held that there was deemed service of notice on the revision petitioner. In the said circumstances, the argument in this regard advanced by the learned counsel for the revision petitioner, cannot be Crl.R.P.209/2015 : 7 : accepted. 8. PW1 clearly stated about the transaction involved in this case. The courts below, relying on the oral and documentary evidence adduced by the complainant, concurrently found that the revision petitioner executed Ext.P3 cheque as contemplated under Section 138 of the N.I. Act. Since there is concurrent finding on facts, this court will not be justified in interfering with the same unless the finding is perverse or incorrect. Having gone through the relevant inputs, I do not find any reason to interfere with the concurrent finding of the courts below that the revision petitioner committed the offence under Section 138 of the N.I. Act. 9. The sentence awarded by the courts below is also very reasonable. In the said circumstances, I find no Crl.R.P.209/2015 : 8 : reason to interfere with the sentence as well. In the result, this revision petition stands dismissed. The revision petitioner is granted three months time to make payment of the fine as requested by the learned counsel for the revision petitioner. ## **Sd//** **B.SUDHEENDRA KUMAR, JUDGE.** _dl_ _True copy /_ _PA to Judge_ Crl.R.P.209/2015 : 9 :