Kerala Vyapari Vyavasayi Ekopana Samithi Vs. State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1009450
CourtKerala High Court
Decided OnDec-20-2012
JudgeHONOURABLE MR.JUSTICE V.K.MOHANAN
AppellantKerala Vyapari Vyavasayi Ekopana Samithi
RespondentState of Kerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice v.k.mohanan thursday, the 20th day of december 2012 29th agrahayana 193 crl.a.no. 71 of 2007 (d) ------------------------ crlp.663/2006 dated 14 12-2006 cc.680/2000 of j.m.f.c., sasthamcotta appellant/complainant: ------------------------ kerala vyapari vyavasayi ekopana samathi, sasthamcotta unit, rep. by it's present secretary, m.james, jinnus, manakkara, sasthamcotta p.o., kollam. by adv. sri.k.babu thomas respondents/accused: ---------------------- 1. state of kerala, rep. by the public prosecutor, high court of kerala, ernakulam.2. sri. m.ismail, s/o. muhammed, proprietor, nazat textiles, manakkara, sasthamcotta p.o., kollam. r1 by public prosecutor smt.laliza.t.y. r2 by adv. sri.vinoy varghese kallumoottill this criminal appeal having been finally heard on 20-12-2012, the court on the same day delivered the following: v.k.mohanan, j.---------------------------------- crl.a.no.71 of 2007 ----------------------------------- dated this the 20th day of december, 2012 judgment the complainant in a prosecution for the offence punishable under section 138 of the negotiable instruments act, 1881 (for short 'the n.i.act') is the appellant as it is aggrieved by the order dated 24/02/2006 in c.c.no.680 of 2000 of the court of the judicial magistrate of the first class, sasthamcotta by which the learned magistrate acquitted the accused under section 255(1) of the cr.p.c.2. the case of the complainant is that, the accused accepted a sum of rupees five lakhs and in consideration of the debt amount, the accused issued a signed dated cheque (ext.p1) for an amount of rupees five lakhs which when presented for encashment, dishonoured for the reason that "exceeds arrangement". according to the complainant, though a statutory notice was served on the accused demanding the repayment of the amount covered crl.a.no.71/2007 :2. : by the dishonoured cheque, no payment was made and therefore the accused has committed the offence punishable under section 138 of the n.i. act. during the trial of the case, pw.1 was examined and exts.p1 to p8 documents were marked. from the side of the defence though no witness was examined, exts.d1 to d4 were marked. after considering the entire evidence and materials on record, the trial court has found that, there is express violation of section 142(a) of the n.i. act and as such the present complaint is not maintainable against the accused. consequently, the accused is acquitted under section 255(1) of the cr.p.c. it is the above finding and order of acquittal are challenged in this appeal.3. i have heard babu thomas.k., learned counsel for the appellant and adv.sri.vinoy varghese kallummoottil for the second respondent/accused.4. after having heard the learned counsel for the appellant and the respondents and on perusal of the crl.a.no.71/2007 :3. : records particularly ext.p1 cheque, i am of the view that the trial court is justified in his finding especially in the light of the decision reported in national small industries corpn. ltd. vs. state 2008 (4) klt 79.(sc).5. in the present case the complainant is kerala vyapari vyvasayi ekopana samithy, represented by the secretary, sivan pillai, aswathiyil, manakkara, sasthamcotta village, whereas the payee in ext.p1 cheque is k.v.v.e.s, sasthamcotta, a.c.no.180. the learned magistrate after considering the evidence and materials on records, particularly exts.p7 and p8, it is found that, ext.p7 is the relevant pages of minutes book of the establishment and ext.p8 is copy of the decision taken by the executive committee on 10/06/2005 and as per ext.p8 document, the committee took a decision by which the secretary at that point of time, one alpha james, is authorised to proceed with the cases, which are connected with the establishment. it is also found by the crl.a.no.71/2007 :4. : learned magistrate that, on perusal of exts.p7 and p8 documents, anybody can see that there is no specific authorisation given by the establishment to the present complainant, to file this case against the accused.6. i have also verified exs.p7 and p8. as per ext.p7 which is dated 16/06/2000 and as per 5th decision the committee, as it was possible to conduct all the cases for and on behalf of the committee through the secretary has decided to authorise the president, vice president and the treasurer and in the name of one biju, who is a staff, to give power of attorney to conduct the cases. ext.p7 cannot be treated as power of attorney. no power of attorney, contemplated by ext.p7 is seen executed or produced before the court authorising mr.sivan pillai to file the complaint against the accused connected with ext.p1 cheque. in the decision reported in national small industries corpn. ltd. vs. state 2008(4)klt 79.(sc) a division bench of the hon'ble apex court has held particularly in paragraph '11' that: crl.a.no.71/2007 :5. : "11. s.138 n.i. act mandates that payee alone, whether a corporeal person or incorporeal person, shall be the complainant. s.200 of the code contemplates only a corporeal person being a complainant. it mandatorily requires the examination of the complainant and the sworn statement being signed by the complainant. if s.142 of n.i. act and s.200 of the code are read literally, the result will be: (a) the complainant should be the payee of the cheque; and (b) the complainant should be examined before issuing process and the complainant's signature should be obtained on the deposition. therefore, if the payee is a company, an incorporeal body, the said incorporeal body can alone be the complainant. the mandatory requirement of s.200 of the code is that a magistrate taking cognizance of an offence on complaint, shall examine upon oath the complainant, and that the substance of such examination reduced to writing shall be signed by the complainant. an incorporeal body can obviously neither give evidence nor sign the deposition. if literal interpretation is applied, it would lead to an impossibility as an incorporeal body is incapable of being examined. in the circumstances, a harmonious and purposive interpretation of s.142 of n.i. act and s.200 of the code becomes necessary. s.142 only requires that the complaint should be in the name of the payee. where the complainant is a company, who will represent the company and how the company will be crl.a.no.71/2007 :6. : represented in such proceedings, is not governed by the code but by the relevant law relating to companies. s.200 of the code mandatorily requires an examination of the complainant; and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf. as a result, the company becomes a de jure complainant and its employee or other representative, representing it in the criminal proceedings, becomes the de facto complainant. thus in every complaint, where the complainant is an incorporeal body, there is a complainant -- de jure, and a complainant -- de facto. clause (a) of the proviso to s.200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to s.200 of the code will be available." thus, a close scrutiny of the available evidence and materials on record, in the light of the dictum laid down by the apex court in the decision cited supra, i am of the view that the learned magistrate is fully correct and crl.a.no.71/2007 :7. : justified in his finding that the complainant is neither payee nor holder in due course of ext.p1 cheque and there is violation of section 142(a) of n.i. act and as such the present complaint is not maintainable against the accused. according to me, the above finding is supported by the evidence and materials on record and fully in accordance with the decision cited supra and therefore it cannot be said that the above finding of the court below is illegal or perverse so as to interfere with the above finding and order of acquittal recorded in favour of the accused. therefore, there is no merit in the above appeal and accordingly the same is dismissed. v.k.mohanan, judge skj
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 20TH DAY OF DECEMBER 2012 29TH AGRAHAYANA 193 CRL.A.No. 71 of 2007 (D) ------------------------ CRLP.663/2006 DATED 14 12-2006 CC.680/2000 of J.M.F.C., SASTHAMCOTTA APPELLANT/COMPLAINANT: ------------------------ KERALA VYAPARI VYAVASAYI EKOPANA SAMATHI, SASTHAMCOTTA UNIT, REP. BY IT'S PRESENT SECRETARY, M.JAMES, JINNUS, MANAKKARA, SASTHAMCOTTA P.O., KOLLAM. BY ADV. SRI.K.BABU THOMAS RESPONDENTS/ACCUSED: ---------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

2. SRI. M.ISMAIL, S/O. MUHAMMED, PROPRIETOR, NAZAT TEXTILES, MANAKKARA, SASTHAMCOTTA P.O., KOLLAM. R1 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. R2 BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.

---------------------------------- Crl.A.No.71 of 2007 ----------------------------------- Dated this the 20th day of December, 2012 JUDGMENT The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as it is aggrieved by the order dated 24/02/2006 in C.C.No.680 of 2000 of the court of the Judicial Magistrate of the First Class, Sasthamcotta by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

2. The case of the complainant is that, the accused accepted a sum of Rupees five lakhs and in consideration of the debt amount, the accused issued a signed dated cheque (Ext.P1) for an amount of Rupees Five lakhs which when presented for encashment, dishonoured for the reason that "exceeds arrangement". According to the complainant, though a statutory notice was served on the accused demanding the repayment of the amount covered Crl.A.No.71/2007 :

2. : by the dishonoured cheque, no payment was made and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PW.1 was examined and Exts.P1 to P8 documents were marked. From the side of the defence though no witness was examined, Exts.D1 to D4 were marked. After considering the entire evidence and materials on record, the trial court has found that, there is express violation of Section 142(a) of the N.I. Act and as such the present complaint is not maintainable against the accused. Consequently, the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal are challenged in this appeal.

3. I have heard Babu Thomas.K., learned counsel for the appellant and Adv.Sri.Vinoy Varghese Kallummoottil for the second respondent/accused.

4. After having heard the learned counsel for the appellant and the respondents and on perusal of the Crl.A.No.71/2007 :

3. : records particularly Ext.P1 cheque, I am of the view that the trial court is justified in his finding especially in the light of the decision reported in National Small Industries Corpn. Ltd. Vs. State 2008 (4) KLT 79.(SC).

5. In the present case the complainant is Kerala Vyapari Vyvasayi Ekopana Samithy, represented by the Secretary, Sivan Pillai, Aswathiyil, Manakkara, Sasthamcotta Village, whereas the payee in Ext.P1 cheque is K.V.V.E.S, Sasthamcotta, A.C.No.180. The learned Magistrate after considering the evidence and materials on records, particularly Exts.P7 and P8, it is found that, Ext.P7 is the relevant pages of minutes book of the establishment and Ext.P8 is copy of the decision taken by the Executive Committee on 10/06/2005 and as per Ext.P8 document, the committee took a decision by which the Secretary at that point of time, one Alpha James, is authorised to proceed with the cases, which are connected with the establishment. It is also found by the Crl.A.No.71/2007 :

4. : learned Magistrate that, on perusal of Exts.P7 and P8 documents, anybody can see that there is no specific authorisation given by the establishment to the present complainant, to file this case against the accused.

6. I have also verified Exs.P7 and P8. As per Ext.P7 which is dated 16/06/2000 and as per 5th decision the committee, as it was possible to conduct all the cases for and on behalf of the committee through the Secretary has decided to authorise the president, vice president and the treasurer and in the name of one Biju, who is a staff, to give power of attorney to conduct the cases. Ext.P7 cannot be treated as power of attorney. No power of attorney, contemplated by Ext.P7 is seen executed or produced before the court authorising Mr.Sivan Pillai to file the complaint against the accused connected with Ext.P1 cheque. In the decision reported in National Small Industries Corpn. Ltd. Vs. State 2008(4)KLT 79.(SC) a division bench of the Hon'ble Apex Court has held particularly in paragraph '11' that: Crl.A.No.71/2007 :

5. : "11. S.138 N.I. Act mandates that payee alone, whether a corporeal person or incorporeal person, shall be the complainant. S.200 of the Code contemplates only a corporeal person being a complainant. It mandatorily requires the examination of the complainant and the sworn statement being signed by the complainant. If S.142 of N.I. Act and S.200 of the Code are read literally, the result will be: (a) the complainant should be the payee of the cheque; and (b) the complainant should be examined before issuing process and the complainant's signature should be obtained on the deposition. Therefore, if the payee is a company, an incorporeal body, the said incorporeal body can alone be the complainant. The mandatory requirement of S.200 of the Code is that a Magistrate taking cognizance of an offence on complaint, shall examine upon oath the complainant, and that the substance of such examination reduced to writing shall be signed by the complainant. An incorporeal body can obviously neither give evidence nor sign the deposition. If literal interpretation is applied, it would lead to an impossibility as an incorporeal body is incapable of being examined. In the circumstances, a harmonious and purposive interpretation of S.142 of N.I. Act and S.200 of the Code becomes necessary. S.142 only requires that the complaint should be in the name of the payee. Where the complainant is a company, who will represent the company and how the company will be Crl.A.No.71/2007 :

6. : represented in such proceedings, is not governed by the Code but by the relevant law relating to companies. S.200 of the Code mandatorily requires an examination of the complainant; and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf. As a result, the company becomes a de jure complainant and its employee or other representative, representing it in the criminal proceedings, becomes the de facto complainant. Thus in every complaint, where the complainant is an incorporeal body, there is a complainant -- de jure, and a complainant -- de facto. Clause (a) of the proviso to S.200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to S.200 of the Code will be available." Thus, a close scrutiny of the available evidence and materials on record, in the light of the dictum laid down by the Apex Court in the decision cited supra, I am of the view that the learned Magistrate is fully correct and Crl.A.No.71/2007 :

7. : justified in his finding that the complainant is neither payee nor holder in due course of Ext.P1 cheque and there is violation of Section 142(a) of N.I. Act and as such the present complaint is not maintainable against the accused. According to me, the above finding is supported by the evidence and materials on record and fully in accordance with the decision cited supra and therefore it cannot be said that the above finding of the court below is illegal or perverse so as to interfere with the above finding and order of acquittal recorded in favour of the accused. Therefore, there is no merit in the above appeal and accordingly the same is dismissed. V.K.MOHANAN, JUDGE skj