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2017 DIGILAW 4 (KER)

V. U. PATHROSE S/O ULAHANNAN v. V. K. JEEVALAN

2017-01-03

MARY JOSEPH

body2017
JUDGMENT : MARY JOSEPH, J. 1. This Criminal Appeal is directed against the judgment of acquittal passed by the Judicial First Class Magistrate Court, Muvattupuzha on 12.6.2008 in C.C. No. 3138/2003, a prosecution launched under Section 138 of the Negotiable Instruments Act, 1881 (for short "the N.I. Act"). The complainant is the appellant, the first respondent is the accused and the second respondent is the State. For the sake of convenience, the parties to this appeal are referred to hereinafter in accordance with their original status in the complaint as the complainant and the accused. 2. In the Appeal Memorandum, grounds are raised against the impugned judgment in the following manner:- (i) While examined as PW-1, the complainant had narrated all crucial aspects relating to the transaction, which are necessary to prove the case. The accused had also admitted the issuance of cheque and affixture of signature therein. In such a circumstance, the offence is proved and the court below ought to have found the accused guilty of the commission of the offence under Section 138 of the N.I. Act and convicted and sentenced him. But, in the case on hand, the court below arrived at a finding on the contrary against the evidence available. (ii) The court below is highly erred in entering into a finding that the Power of Attorney Holder of the complainant has no direct knowledge about the transaction. The evidence adduced by the Power of Attorney Holder is complete in all respects and therefore the court below ought not to have discarded the testimony of the Power of Attorney Holder to enter into a finding that the accused is not guilty of the offence alleged to have been committed by him. 3. Smt. R. Sudha, the learned counsel advanced arguments on behalf of the complainant based on the grounds referred supra and canvassed that this Court needs to interfere with the finding of acquittal of the accused and to reverse the same. 4. In the backdrop, it is relevant to have an analysis of the averments which formed the basis for launching the complaint in question. 5. The complaint to launch the prosecution under Section 138 of the N.I. Act was filed by the Power of Attorney Holder of the complainant in exercise of the authority conferred on him by Ext.P1. 4. In the backdrop, it is relevant to have an analysis of the averments which formed the basis for launching the complaint in question. 5. The complaint to launch the prosecution under Section 138 of the N.I. Act was filed by the Power of Attorney Holder of the complainant in exercise of the authority conferred on him by Ext.P1. The averments of the Power of Attorney Holder for and on behalf of the complainant were narrated in paragraph 1 of the complaint and that is extracted hereunder for reference:- “2. The accused issued a cheque No. 0455270 dated 01.02.2003 for Rs .1,50,000/- (Rupees One lakh fifty thousand only) drawn on the State Bank of Travancore, Pampakuda branch to the complainant. The cheque was issued towards the discharge of a liability due to the complainant making the complainant to believe that, the accused is having an account maintained in the said bank and he has sufficient fund in it.” 6. During trial, the Power of Attorney holder let in evidence in chief through proof affidavit. The Power of Attorney Holder has sworn to in the chief affidavit regarding the transaction in the following terms:- “For the amount due to the complainant the accused issued a cheque bearing No. 0455270 dated 01.02.2003 for an amount of Rs. 1,50,000/- (Rupees One lakh fifty thousand only) drawn on the State Bank of Travancore, Pampakuda branch, to the complainant. The cheque was issued making the complainant to believe that, the accused is having an account maintained in the said bank and he had sufficient fund in it. The cheque issued by the accused in favour of the complainant is produced as item No. 2 of the additional list of documents and the same may be marked as Ext.P2.” 7. In cross examination he has gone a step further and described the transaction in the following manner:- It appears from the above discussion that the Power of Attorney holder, when entered into the box, rather than deposing about the transaction as pleaded by him in the complaint deviated therefrom to state the transaction as.......... 8. In cross examination he has gone a step further and described the transaction in the following manner:- It appears from the above discussion that the Power of Attorney holder, when entered into the box, rather than deposing about the transaction as pleaded by him in the complaint deviated therefrom to state the transaction as.......... 8. It is true, the argument of Smt. Sudha, that the complainant need not state each and every particulars of the transaction in the complaint, gains support from Joseph vs. Baby, 2002 (3) KLT (SN 46 Case No. 64) which is extracted herein-below:- “Written complaint need not contain the entire transaction and there is no burden on the complainant to prove the entire transaction, but need to mention only the fact that the cheque was issued for discharge of a legally enforceable debt or liability.” 9. Contextually, it is pertinent to have a look at the evidence of PW-1. According to him, the complainant was conducting a money lending business at Piravam. But, the transaction alleged in the case on hand is not related to the said business but, an independent money transaction which he termed as......... When confronted with the details of the transaction, PW-1 denied to have direct knowledge of the same. According to him, he has only hearsay information about the transaction and even on the basis of that information, he failed to state the exact date of the transaction. 10. The accused has taken the specific defence of denial of execution and issuance of Ext.P2 cheque to the complainant. A specific case was put forth by the accused that the cheque in question was given by him for usage as security by one Gangadharan in a money transaction, the latter was having with the complainant and that was misused to launch the prosecution. PW-1 was confronted with this version of the transaction in the following terms:- The suggestion so put forth was not denied outrightly, but only a plea of ignorance of the same was raised. It follows therefrom that stating so, PW-1 has proved his incapability to depose about the transaction creating the debt or liability in discharge of which Ext.P2 cheque was issued. 11. When viewed in that backdrop the version of PW-1 that:- xxx xxx xxx xxx xxx 12. It follows therefrom that stating so, PW-1 has proved his incapability to depose about the transaction creating the debt or liability in discharge of which Ext.P2 cheque was issued. 11. When viewed in that backdrop the version of PW-1 that:- xxx xxx xxx xxx xxx 12. It is also worthy to note that any of the particulars as narrated hereinabove do not find a place in the complaint. Those have been elucidated from PW-1 for the first time during cross-examination. If PW-1 has clear acquaintance about the issuance of cheque in question by the accused at the residence of the complainant on 01.02.2003 towards discharge of a legally enforceable debt, there is absolutely no reason for him to plead ignorance to the suggestion of the defence that the cheque was given as security to one Gangadharan by the accused and it was misused for launching the prosecution. 13. The Power of Attorney holder of a person need not have direct knowledge about the transaction between the complainant and the accused. But, when he assumes the role of a representative of the complainant gaining authority from the Power of Attorney executed in his favour by the complainant and enters into the Box to depose on behalf of him as a witness, he must be in a position to state a consistent and clear version of the transaction for and on behalf of the complainant. 14. The various dictums laid down by the Apex Court regarding the authority of a Power of Attorney Holder to represent a complainant in a criminal proceedings is relevant contextually and a discussion of the same is apposite in the 15. There has been difference of opinion among the various benches of the Apex Court in M.M.T.C. Ltd. vs. Medchl Chemicals and Pharma (P) Ltd. (2002) 1 SCC 234 and Janki Vashdeo Bhojwani and Others vs. Indusind Bank Ltd. and Others, AIR 2005 SC 439 and in that context, a reference was necessitated and that when placed before a larger Bench of the Apex Court, it was answered in A.C. Narayanan vs. State of Maharashtra, (2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343 in the following terms:- “27. The stand of the appellant in Criminal Appeal No. 73 of 2007 is that no complaint can be filed and no cognizance of the complaint can be taken if the complaint is by the power-of-attorney holder, since it is against Section 200 Code and deserves to be rejected. There is no dispute that complaint has to be filed by the complainant as contemplated by Section 200 of the Code, but the said section does not create any embargo that the attorney holder or legal representatives cannot be a complainant. 28. The power-of-attorney holder is the agent of the grantor. When the grantor authorises the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder and not by the attorney holder in his personal capacity. Therefore, where the payee is a proprietary concern, the complaint can be filed by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee; or the proprietary concern, describing himself as the sole proprietary concern, represented by its sole proprietor; or the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. However, we make it clear that the power-of-attorney holder cannot file a complaint in his own name as if he was the complainant. In other words, he can initiate criminal proceedings on behalf of the principal. 29. From a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as Section 200 Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present before the court and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the NI Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the NI Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness required, the Magistrate may call upon the complainant to remain present before the court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the NI Act. 30. In the light of the discussion, we are of the view 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 Section 138 of the NI Act. An exception to the above is when the power-of-attorney holder of the complainant does not have a personal knowledge about the transactions, then he cannot be examined. However, where the 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, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the power-of-attorney holder about the transaction in question must be specified in the complaint.......” 16. It follows from the dictum cited supra that there is no bar for a complaint under Section 138 of the N.I. Act to be launched by the Power of Attorney Holder specifically authorised by a Power of Attorney, on behalf of the complainant. He can file the complaint, appear, verify on oath and depose before the court in order to prove the contents of the complaint for the purpose of enabling the court to issue process in the case. He can file the complaint, appear, verify on oath and depose before the court in order to prove the contents of the complaint for the purpose of enabling the court to issue process in the case. When the Power of Attorney Holder of the complainant had not witnessed or does not have a personal knowledge about the transactions, then he cannot be examined as a witness in the case. In a case wherein the Power of Attorney Holder of the complainant is in charge of the business of the complainant, he must have personal knowledge of the details of the transaction and nothing prevents him from deposing those as a witness. It is fundamental for the complainant in such a case to specify in the complaint that the Power of Attorney Holder has knowledge about the transaction in question. 17. The complaint in the case on hand was launched by the Power of Attorney Holder on behalf of the complainant and it is devoid of any plea with respect to his knowledge of the transaction creating liability, based on which Ext.P1 was issued. It is convincingly established from a deep appreciation of the entire version of PW1 that he was not aware of the transaction alleged in the complaint, which was filed by him on behalf of the complainant. Or in other words, PW1 has no involvement in the transaction or was not transpired with a definite information about the transaction by the complainant at the time when the prosecution was launched on behalf of him. PW1 also fails to depose a clear version of the transaction during chief examination. In cross-examination, PW-1 took a definite version about the transaction as kaivaypa. When complainant has no definite plea about the transaction either in the complaint or at the time of tendering evidence in chief as PW-1, his version during cross-examination regarding issuance of Ext.P1 towards discharge of a liability in a kaivaypa assumes relevance. Therefore, the actual transaction can only be taken as a borrowal of money (kaivaypa) and therefore, is purely a personal transaction of the complainant. The complainant has not come forward to depose that PW-1 the Power Attorney Holder was a witness to the said transaction. The real complainant was not examined in the case. The Power of Attorney Holder has also no such case while tendering evidence as PW-1. The complainant has not come forward to depose that PW-1 the Power Attorney Holder was a witness to the said transaction. The real complainant was not examined in the case. The Power of Attorney Holder has also no such case while tendering evidence as PW-1. The expression of ignorance by PW-1 to the case put forth in defence itself is sufficient to view the transaction as pleaded by PW-1 doubtful. Therefore, it is clear from a totality of the version of PW1 that he has no knowledge of the transaction of borrowal of sum by the accused. In the circumstances, he cannot be a competent witness to depose about the transaction in which the complainant is personally involved and he alone can have knowledge. 18. Therefore, in the case on hand, a doubt is created as to the transaction which caused the issuance of the cheque and to whom it was issued. The complaint is silent as to material particulars regarding the transaction i.e. the nature, the date and the place. The complaint even does not contain an explicit assertion in specific terms about the knowledge of the Power of Attorney Holder about the transaction involved in the case, from which the issuance of the cheque was necessitated. The Power of Attorney holder when examined as PW1 stated assertively that he was an accountant in the institution of the complainant conducting financial transactions by the complainant and that he is representing the complainant in all cases wherein he has personal involvement. Therefore, it follows that the Power of Attorney Holder was an employee at the financial institution run by the complainant and was authorised by Ext.P1 Power of Attorney to represent the complainant in cases wherein he has personal involvement. But, a scrutiny of his evidence reveals that he has no involvement in the financial dealings of the institution run by the complainant. His version in the box that he has only hearsay information about the transaction from the complainant adds credence to his lack of involvement in the alleged financial dealings of the complainant with the accused, that caused the issuance of the cheque by the latter. The failure of the Power of Attorney Holder to categorically deny the case put forth by the defence as suggestion is also indicative of his lack of information about the alleged monetary transaction as pleaded in the complaint. The failure of the Power of Attorney Holder to categorically deny the case put forth by the defence as suggestion is also indicative of his lack of information about the alleged monetary transaction as pleaded in the complaint. The aforesaid discussion direct me to hold that the Power of Attorney Holder (PW-1) was not competent to swear and depose as a witness for and on behalf of the complainant in the prosecution in question. Indisputably, these circumstances would also tend to doubt the case of the complainant as pleaded by him in the complaint. In such a circumstance, the benefit of presumption under Section 139 of the N.I. Act would not be available to the complainant. 19. The court below has not erred in finding the accused not guilty and in passing the judgment under challenge. The impugned judgment does not suffer from illegality, impropriety and incorrectness, warranting interference. In the result, the appeal fails and is dismissed. The impugned judgment is confirmed.