KERALA VYAPARI VYAVASAYI EKOPANA SAMATHI v. STATE OF KERALA
Case at a glance
Outcome
Acquitted
Consequently, the accused is acquittedunder Section 255(1) of the Cr
Provisions considered
- NegotiableInstruments Act, 1881 s. 138
- Code of Criminal Procedure, 1973 s. 255(1)
- Negotiable Instruments Act, 1881 ss. 138, 142, 142(a)
Key paragraphs
- Para 66.I have also verified Exs.P7 and P8. As perExt.P7 which is dated 16/06/2000 and as per 5th decisionthe committee, as it was possible to conduct all the casesfor and on behalf of the committee through the Secretaryhas decided to authorise the president, vice president andthe…
Judgment
V.K.MOHANAN, J.----------------------------------Crl.A.No.71 of 2007-----------------------------------Dated this the 20th day of December, 2012JUDGMENTThe complainant in a prosecution for the offencepunishable under Section 138 of the NegotiableInstruments Act, 1881 (for short 'the N.I.Act') is theappellant as it is aggrieved by the order dated 24/02/2006in C.C.No.680 of 2000 of the court of the JudicialMagistrate of the First Class, Sasthamcotta by which thelearned Magistrate acquitted the accused under Section255(1) of the Cr.P.C.
Operative part
The case of the complainant is that, the accusedaccepted a sum of Rupees five lakhs and in considerationof the debt amount, the accused issued a signed datedcheque (Ext.P1) for an amount of Rupees Five lakhswhich when presented for encashment, dishonoured forthe reason that “exceeds arrangement”. According to thecomplainant, though a statutory notice was served on theaccused demanding the repayment of the amount covered Crl.A.No.71/2007 : 2 :by the dishonoured cheque, no payment was made andtherefore the accused has committed the offencepunishable under Section 138 of the N.I. Act. During thetrial of the case, PW.1 was examined and Exts.P1 to P8documents were marked. From the side of the defencethough no witness was examined, Exts.D1 to D4 weremarked. After considering the entire evidence andmaterials on record, the trial court has found that, thereis express violation of Section 142(a) of the N.I. Act andas such the present complaint is not maintainable againstthe accused. Consequently, the accused is acquittedunder Section 255(1) of the Cr.P.C. It is the abovefinding and order of acquittal are challenged in thisappeal.
I have heard Babu Thomas.K., learned counselfor the appellant and Adv. Sri. Vinoy VargheseKallummoottil for the second respondent/accused.
After having heard the learned counsel for theappellant and the respondents and on perusal of the Crl.A.No.71/2007 : 3 :records particularly Ext.P1 cheque, I am of the view thatthe trial court is justified in his finding especially in thelight of the decision reported in National SmallIndustries Corpn. Ltd. Vs. State 2008 (4) KLT 798(SC).
In the present case the complainant is KeralaVyapari Vyvasayi Ekopana Samithy, represented by the Secretary, Sivan Pillai, Aswathiyil, Manakkara, Sasthamcotta Village, whereas the payee in Ext.P1cheque is K.V.V.E.S, Sasthamcotta, A.C.No.180. Thelearned Magistrate after considering the evidence andmaterials on records, particularly Exts.P7 and P8, it isfound that, Ext.P7 is the relevant pages of minutes bookof the establishment and Ext.P8 is copy of the decisiontaken by the Executive Committee on 10/06/2005 and asper Ext.P8 document, the committee took a decision bywhich the Secretary at that point of time, one AlphaJames, is authorised to proceed with the cases, which areconnected with the establishment. It is also found by the Crl.A.No.71/2007 : 4 :learned Magistrate that, on perusal of Exts.P7 and P8documents, anybody can see that there is no specificauthorisation given by the establishment to the presentcomplainant, to file this case against the accused.
I have also verified Exs.P7 and P8. As perExt.P7 which is dated 16/06/2000 and as per 5th decisionthe committee, as it was possible to conduct all the casesfor and on behalf of the committee through the Secretaryhas decided to authorise the president, vice president andthe treasurer and in the name of one Biju, who is a staff, to give power of attorney to conduct the cases. Ext.P7cannot be treated as power of attorney. No power ofattorney, contemplated by Ext.P7 is seen executed orproduced before the court authorising Mr.Sivan Pillai tofile the complaint against the accused connected with Ext.P1 cheque. In the decision reported in NationalSmall Industries Corpn. Ltd. Vs. State 2008(4)KLT798 (SC) a division bench of the Hon'ble Apex Court hasheld 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 Codecontemplates only a corporeal person being acomplainant. It mandatorily requires theexamination of the complainant and the swornstatement being signed by the complainant. If S.142of N.I. Act and S.200 of the Code are read literally, the result will be: (a) the complainant should be thepayee of the cheque; and (b) the complainant shouldbe examined before issuing process and thecomplainant's signature should be obtained on thedeposition. Therefore, if the payee is a company, anincorporeal body, the said incorporeal body canalone be the complainant. The mandatoryrequirement of S.200 of the Code is that aMagistrate taking cognizance of an offence oncomplaint, shall examine upon oath the complainant, and that the substance of such examination reducedto writing shall be signed by the complainant. Anincorporeal body can obviously neither give evidencenor sign the deposition. If literal interpretation isapplied, it would lead to an impossibility as anincorporeal body is incapable of being examined.
Inthe circumstances, a harmonious and purposiveinterpretation of S.142 of N.I. Act and S.200 of the Code becomes necessary. S.142 only requires thatthe complaint should be in the name of the payee. Where the complainant is a company, who willrepresent the company and how the company will be Crl.A.No.71/2007 : 6 :represented in such proceedings, is not governed bythe Code but by the relevant law relating tocompanies. S.200 of the Code mandatorily requiresan examination of the complainant; and where thecomplainant is an incorporeal body, evidently onlyan employee or representative can be examined onits behalf. As a result, the company becomes a dejure complainant and its employee or otherrepresentative, representing it in the criminalproceedings, becomes the de facto complainant. Thus in every complaint, where the complainant isan incorporeal body, there is a complainant -- dejure, and a complainant -- de facto.
Clause (a) of theproviso to S.200 provides that where thecomplainant is a public servant, it will not benecessary to examine the complainant and hiswitnesses. Where the complainant is an incorporealbody represented by one of its employees, theemployee who is a public servant is the de factocomplainant and in signing and presenting thecomplaint, he acts in the discharge of his officialduties. Therefore, it follows that in such cases, theexemption under clause (a) of the first proviso toS.200 of the Code will be available.” Thus, a close scrutiny of the available evidence andmaterials on record, in the light of the dictum laid downby the Apex Court in the decision cited supra, I am of theview that the learned Magistrate is fully correct and Crl.A.No.71/2007 : 7 :justified in his finding that the complainant is neitherpayee nor holder in due course of Ext.P1 cheque andthere is violation of Section 142(a) of N.I. Act and as suchthe present complaint is not maintainable against theaccused.
According to me, the above finding is supportedby the evidence and materials on record and fully inaccordance with the decision cited supra and therefore itcannot be said that the above finding of the court below isillegal or perverse so as to interfere with the abovefinding and order of acquittal recorded in favour of theaccused. Therefore, there is no merit in the above appeal andaccordingly the same is dismissed.V.K.MOHANAN, JUDGEskj
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Consequently, the accused is acquittedunder Section 255(1) of the Cr
Which statutory provisions did this judgment involve?
NegotiableInstruments Act, 1881 — s. 138; Code of Criminal Procedure, 1973 — s. 255(1); Negotiable Instruments Act, 1881 — ss. 138, 142, 142(a).
Which court decided this case, and when?
Kerala High Court, on 20 Dec 2012. The bench was V K MOHANAN.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.