The High Court of Kerala dismissed the appellant's criminal appeal against an order of acquittal in a cheque dishonour case, finding the impugned judgment devoid of merits.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938
CRL.A.No. 179 of 2009 ( )
Crl.L.P. 64/2009 of HIGH COURT OF KERALA DATED 16-01-2009
CC 1257/2005 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, KUNNAMKULAM DATED 16-12-2008
APPELLANT/COMPLAINANT:
SHRIRAM TRANSPORT FINANCE CO.LTD., (FORMERLY KNOWN AS SHRIRAM INVESTMENTS LTD.) HAVING ITS REGISTERED OFFICE AT 123, ANGAPPA NAICKEN STREET, CHENNAI, REP. BY POWER OF ATTORNEY HOLDER SRI.VENUGOPALAN P.T.,LEGAL CONSULTANT, SHRIRAM TRANSPORT FINANCE CO.LTD., SREEPADAM BUILDING, CHEROOTY ROAD, CALICUT.
BY ADV. SRI.RAJESH NAMBIAR
RESPONDENTS/STATE & ACCUSED:
1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
2. DEVAKI, W/O.NANU, PATTARUMADATHIL HOUSE, THRIKKANAPURAM PO., KUTTIPURAM, MALAPPURAM.
R1 BY SR.PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA R2 BY ADV. SRI.P.K.MOHANAN(PALAKKAD)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/31/10/16
B. KEMAL PASHA, J
================
Crl.Appeal No.179 of 2009 ================
Dated this the 20th day of October, 2016
J U D G M E N T
Challenging the judgment of acquittal passed
by the Judicial First Class Magistrate’s Court, Kunnamkulam, in C.C.No.1257 of 2005, the complainant before the court below has come up in appeal.
Ltd. The case before the court below was the result of a private complaint filed by the said complainant, against the 2nd respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act.
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transaction, for the purchase of a stage carriage. When the accused defaulted the instalments, he was called upon to pay the balance amount. The accused, thereupon, issued Exhibit-P3 cheque dated 17.12.2004 for `4,79,559/-. The said cheque, when presented, returned dishonoured for insufficiency of funds in the account of the accused. The notice caused to be issued to the accused under Section 138(b) of the Negotiable Instruments Act, did not evoke any response and hence the complaint.
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and the learned counsel for the 2nd respondent.
argued that the judgment of acquittal was passed by the court below without proper reasons. Per contra, the learned counsel for the 2nd respondent has supported the impugned judgment. It has to be noted that the complainant before the court below is Sree Ram Investments Ltd. PW1, who has represented the complainant, claims that he was appointed as Power of Attorney holder by Shriram Transport Finance Co. Ltd., through Exhibit-P1 Power of Attorney. Both sides have agreed that the amalgamation took place with effect from 25.11.2005 only. Exhibit-P1 Power of Attorney was executed on 31.12.2004 by Shriram Transport Finance Co. Ltd., in favour of PW1. As on the date of execution of Exhibit-P1 Power of Attorney, Shriram Transport Finance Co. Ltd. had no right to claim any amount from the accused. They got the
Crl.A.179/09 4
power only on amalgamation. Therefore, in such a case, Shriram Transport Finance Co. Ltd. ought to have executed a fresh Power of Attorney, authorising PW1 or some other person to represent them before a court of law or to institute or to defend legal proceedings etc.
has come out through Exhibit-D4 registration particulars in respect of the vehicle in question that the said vehicle was having hire purchase agreement with KTDFC Ltd, Palayam, Thiruvananthapuram with effect from 06.05.2002. If, as a matter of fact, the complainant had any hire purchase transaction in respect of the said vehicle during the said period, the name of the complainant should have been noted in the registration particulars. The fact, as to how the hire purchase transaction with KTDFC Ltd. has been noted in the R.C.Book of the vehicle, has not been
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properly explained by PW1. The learned counsel for the appellant has explained the circumstances in which the name of the complainant did not find a place in the registration particulars. In the light of the deposition of PW1, on that aspect, the present submissions put forwarded by the learned counsel for the appellant cannot be taken as substitution of the evidence of PW1. From all the above, it has clearly come out that the impugned judgment is not liable to be interfered with. Matters being so this Crl.Appeal is devoid of merits and is only to be dismissed and, I do so.
In the result, this Crl.Appeal is dismissed.
Sd/-
B. KEMAL PASHA, JUDGE.
DSV/21/10/16
// True Copy //
P.A. To Judge
1 issue framed by the court
Whether an appeal against acquittal under Section 138 of the Negotiable Instruments Act should be allowed due to apparent illegality regarding power of attorney execution and discrepancies in hire pur
2 provisions across 2 enactments
Shriram Transport Finance Co. Ltd.
State of Kerala
Devaki
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
