Vinod Kumar v. Sharfudeen and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **CRL.A.No.110 OF 2007** **AGAINST THE JUDGMENT DATED 13-10-2006 IN ST NO.3083/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PALAKKAD** ## **APPELLANT/ COMPLAINANT:** **VINOD KUMAR, PROPRIETOR, M/S.RAKKESH FINANCE, NO.52/7, SOWDARPET, CHENNAI-600 069, REP. BY ITS POWER OF ATTORNEY, V.P.KANNAN UNNI, S/O.LATE MADHAVAN NAIR, AGED 57 YEARS, SREE VALSAM, MADHAV NAGAR, VADAKANTHARA, PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENT/ ACCUSED AND STATE:** **1 SHARFUDHEEN, S/O. A.KHADEEJA, CHINJAPURATH HOUSE, NEAR MUSLIM SCHOOL, PATTITHARA, KARUNAPURAM POST, THRITHALA, PALAKKAD. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY ADV. SRI.P.K.MOHANANPALAKKAD** **OTHER PRESENT:** ## **SR.P.P- SRI. B. JAYASURYA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.A.No.110 of 2007** ## **-: 2 :-** Dated this the 10[th] day of December, 2019 ## J U D G M E N T Judgment of aquittal dated 13.10.2006 in S.T. No.3083/2004 before Judicial First Class Magistrate Court-I, Palakkad is challenged by the complainant. 2. Appellant/complainant filed a private complaint before the court below under Section 138 of the Negotiable Instruments Act, 1881(for short 'the N.I. Act'), alleging that in discharge of an existing debt incurred by the accused, who is the first respondent herein, Ext.P1 cheque dated 11.08.2004 drawn in the name of the appellant was issued. The cheque on presentment was dishonoured for want of funds to the credit of the accused. Even though intimation of dishonour and demand for discharge were made in writing to accused, he refused to accept the notice and thereupon after giving stipulated period of time prescribed by Section 138 of the N.I. Act, complaint was filed within time. 3. On appearance of accused, particulars of offence were read over and explained to him and on **Crl.A.No.110 of 2007** ## **-: 3 :-** his pleading not guilty, trial commenced with examination of complainant as PW1. On his side, Exts.P1 to P7 were admitted in evidence. The case set up by the accused, while being questioned under Section 313 of the Code of Criminal Procedure, 1973(for short 'the Cr.P.C.'), is that he did not have any sort of financial connection or transaction with the complainant at all. He had issued a cheque drawn in the year 2000 in favour of 'Alikkal Finance' conducted by one Rajesh. In connection with a loan received from Sri. Rajesh, he had issued a blank cheque in the form of a security which was later misused. Therefore, his contention is that Ext.P1 cheque is not enforceable in discharge of the alleged legally incurred debt by him. On his side, however, he did not adduce any evidence though sufficient opportunity was given. 4. The court below after discussing the evidence found that there is every chance of accused having issued Ext.P1 cheque in discharge of legally enforceable debt, as if the case put forward by prosecution was true. But while **Crl.A.No.110 of 2007** ## **-: 4 :-** concluding the judgment, the court below found that complaint itself was not maintainable under law inasmuch as it was brought into existence at the instance of a power of attorney holder engaged by the complainant without obtaining leave of the court under Section 302 of the Cr.P.C. In this connection, in paragraph No.10 of the impugned judgment, a decision of the Hon'ble Supreme Court reported in Jimmy Jahangir Madan v. Bolly Kariappa Hindley [(2004)3 KLT 850] was relied on by the court below to hold that complaint filed through a power of attorney holder without obtaining leave of the court under Section 302 of the Cr.P.C. is not maintainable. 5. I heard the learned counsel for the appellant/complainant as well as the learned counsel for the first respondent/accused. 6. The counsel appearing on both sides argued on maintainability of the complaint and referred to the Hon'ble Supreme Court's decision relied on in paragraph No.10 of the impugned judgment. After hearing both sides, I do not find that there was ## **Crl.A.No.110 of 2007** ## **-: 5 :-** any necessity for the complainant to have sought the leave of the court under Section 302 of the Cr.P.C. since the aforesaid provision does not appear to have any bearing on prosecutions instituted under Section 138 of the N.I.Act. Section 142 of the N.I. Act provides for the classes of persons who are entitled to lodge complaint in terms of Section 138 of the N.I.Act. Ext.P7 power of attorney shows that PW1 was authorised to lodge as well as prosecute the complaint on his behalf. Looking at Ext.P7, I am of the opinion that PW1 came to picture as the agent of the original complainant. In that scenario, it is futile to contend that leave under Section 302 of the Cr.P.C. was necessitated. In fact, the decision relied on in the impugned judgment rightly applied to set of facts which are totally different from those in the present case. In this connection, the learned counsel for the accused cited a decision of the Hon'ble Supreme Court in Narayanan v. State of Kerala [2013(3) KLT 21(SC)]. Though the facts dealt with are different, **Crl.A.No.110 of 2007** ## **-: 6 :-** principle of law has been laid down to the effect that a power of attorney holder is entitled to lodge a complaint initiated under Section 138 of the N.I.Act as an agent of the original complainant. This being the legal position, I am satisfied that the finding entered into by the court below is erroneous and has no legs to stand. In the light of what is observed above, the order holding the complaint to be not maintainable under law is set aside and I hold that private complaint lodged through PW1/power of attorney holder is perfectly maintainable under law. 7. The case of the complainant appears to be that in discharge of an existing legal debt, Ext.P1 cheque dated 11.08.2004 was drawn in the name of the complainant and delivered to him. It is an admitted fact that on presentment of cheque, drawee bank dishonoured the cheque for want of funds. Intimation of dishonour was duly given to the accused and it is proved that despite knowledge of the notice issued in writing also, no reply was sent. The complaint is seen having been filed **Crl.A.No.110 of 2007** ## **-: 7 :-** within the time frame prescribed by law. There is no dispute also between parties that the complaint was lodged within time and in due compliance with the legal formalities envisaged by Section 138 read with Section 142 of the N.I. Act. 8. The sole dispute concerns the question as to whether Ext.P1 cheque was issued in discharge of legally enforceable debt. It is clear from the averments made in the complaint as well as the evidence given by PW1/power of attorney holder that neither the date of transaction nor the date of issue of cheque was mentioned anywhere. The place where the cheque was allegedly delivered also does not find a place either in the written complaint or in the evidence given by the power of attorney. While PW1 cross-examined, he said that there was a hire purchase loan transaction as between the complainant and the accused and in connection with the said loan, a hire purchase agreement was executed. An autorikshaw bearing registration No.KL 12 2977 was purchased availing the loan advanced as on 01.09.2000. This testimony shall be read in the **Crl.A.No.110 of 2007** ## **-: 8 :-** light of the defence contention that he had issued Ext.P1 cheque as security in connection with a financial transaction entered into with Sri. Rajesh, the owner of Alikkal Finance in the year 2000. 9. Ext.P1 cheque on the face of it shows that the signature of the drawer was put in an ink different from other writings in the cheque. There is reason to infer that a blank cheque containing signature alone was issued by the accused. On a perusal of Ext.P1 cheque as well as the answer given by PW1 that the complainant had a hire purchase loan arrangement with accused, it is highly probable that Ext.P1 cheque was taken in connection with a transaction which is totally different from what has been disclosed in the complaint. The court below did not advert to this aspect in the impugned judgment at all. 10. The mere assertion in the testimony of PW1 that Ext.P1 cheque was taken in discharge of an existing legal debt cannot be taken as sufficient proof to hold that accused issued the cheque in **Crl.A.No.110 of 2007** ## **-: 9 :-** discharge of legally enforceable debt. There is no independent evidence to corroborate the case of the complainant that issue of cheque was in connection with an existing debt. On the other hand, on a scrutiny of entire testimony of PW1 as well as attendant circumstances, it is highly probable that Ext.P1 cheque was taken in connection with a hire purchase loan to which accused was proved to be a party. This inference could be very much drawn notwithstanding that accused did not choose to bring in evidence either through himself or Rajesh, who is said to be the owner of Alikkal Finance. In total disagreement with the view taken by the court below, I find that the complainant failed to prove that Ext.P1 cheque was issued in discharge of legally enforceable debt. 11. There is no averment either in the complaint or the testimony given by PW1 that he has had any personal knowledge about the transaction as between the complainant and the accused. In Narayanan's case (cited supra) the Hon'ble Supreme Court went to the extent of holding that the **Crl.A.No.110 of 2007** ## **-: 10 :-** complainant who lodges the complaint through his attorney should explicitly mention in the complaint that the attorney has got personal knowledge of the transaction on which he was to depose before the court. This material averment is lacking in the present case. Taking all these facts together, I am of the opinion that the accused must at least get the benefit of reasonable doubt. Ext.P1 cheque has not been shown to have been issued in discharge of legally enforceable debt. The accused is, therefore, found to be not guilty of offence punishable under Section 138 of the N.I. Act and he is entitled to an order of aquittal. In the result, appeal fails and impugned order of acquittal is confirmed. All pending interlocutory applications will stand closed. **Sd/-** ## T.V.ANILKUMAR,JUDGE DST //True copy// P.A.To Judge