Dismissed

Shriram Transport Finance Co. Ltd. v. State of Kerala

Kerala HC6 Aug 2016CRL.A/685/2009

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the criminal appeal against a reduction in criminal liability and acquittal regarding a cheque bounce case. The court held the appeal was devoid of merit due to the lack of valid power of attorney from the complainant firm and insufficient evidence supporting the cheque's validity.

What did the court decide?

The criminal appeal was dismissed and the judgment of acquittal of the accused was affirmed.

Shriram Transport Finance Co. Ltd. Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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SATURDAY, THE 6TH DAY OF AUGUST 2016/15TH SRAVANA, 1938

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CRL.A.No. 685 of 2009 (A)

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CC.NO. 946/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM

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APPELLANT/PETITIONER:

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SHRIRAM TRANSPORT FINANCE CO. LTD., (FORMERLY KNOWN AS SHRIRIAM INVESTMENTS LTD), HAVING ITS REGISTERED OF OFFICE AT 123, ANGAPPA, NAICKEN STREET, CHENNAI, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.L.DEVASSY, S/O.SRI.LONAPPAN, CONSULTANT, FUNCTIONING FROM KADAVI HOUSE, ANCHERI.P.O., THRISSUR.

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BY ADV. SRI.RAJESH NAMBIAR

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RESPONDENT(S)/STATE & ACCUSED :

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA.

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2. JOSAFEENA, W/O. THOMAS, CHOOTHAPARAMBIL HOUSE, VYPIN,

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PALLIPORT P.O, ERNAKULAM DIST.

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R1 BY PUBLIC PROSECUTOR SMT. MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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B.KEMAL PASHA, J.

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================

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Crl.A. No.685 of 2009

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======================= Dated this the 6^th day of August, 2016

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JUDGMENT

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Dissatisfied with the judgment of acquittal passed by

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the Judicial First Class Magistrate's Court, Kunnamkulam in C.C.No.946/2005, the complainant before the court below

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has come up in appeal. Originally, the complaint was filed by Shri Ram Investments Ltd. on 28.05.2005. Later, with effect from 25.11.2005, the said company amalgamated with Shri Ram Transport Finance Company Ltd.

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The complaint before the court below was one alleging an offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') as against the 2^nd respondent herein. The case of the complainant was that Ext.P2 cheque issued by the accused to the complainant company for 5,49,850/- in discharge of₹ his legally enforceable liability, stood dishonoured for

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Crl.A. No.685 of 2009

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insufficiency of funds in the accounts of the accused and that the amount was not paid by the accused even though a demand as contemplated under Section 138(b) of the N.I.Act. was made through a notice.

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On the side of the complainant, PW1 was examined and Exts.P1 to P9 were marked. On the side of the accused, Exts.D1 and D2 were marked. The court below has acquitted the accused through the impugned judgment.

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Heard the learned counsel for the appellant and the learned Public Prosecutor.

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The learned counsel for the appellant has argued that the court below ought not to have acquitted the accused on the grounds mentioned in the impugned judgment. It has also been pointed out that the court below has made some observations which are not legally sustainable.

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PW1 was the power of attorney holder, who was authorised through Ext.P1 power of attorney dated

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Crl.A. No.685 of 2009

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31.12.2004 executed by Shri Ram Transport Finance Company Ltd., for instituting and defending legal proceedings etc. At that point of time, there was no amalgamation at all. The liability of the accused, even if in existence, was only towards Shri Ram Investments Ltd., as on date of execution of Ext.P1. The amalgamation had allegedly taken place with effect from 25.11.2005 only. Therefore, as on the date of execution of Ext.P1, Shri Ram Transport Finance Company Ltd., who executed Ext.P1 power of attorney, had no right to claim any amount from the accused. They got the power only on amalgamation. Therefore, in such case, Shri Ram Transport Finance Company 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 defend legal proceedings etc., in a case like this. Hence, PW1 had no power or authority to depose in a case like this on the basis of Ext.P1 power of attorney.

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Crl.A. No.685 of 2009

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Apart from the above, it seems that as per Ext.D1 lawyer's notice dated 15.02.2005, Shri Ram Investments Ltd. had demanded an amount of 92,400/- and interest₹ and an amount of 250/- by way of notice₹ charges, from the accused towards the very same transaction. Again, through Ext.D2 notice dated 25.04.2005, Shri Ram group of companies had demanded an amount of 1,29,560/- by way₹ of arrears with interest from the accused towards the very same transaction. Ext.P2 cheque is dated 22.03.2005. When an amount of 92,400/- only was demanded towards₹ arrears of hire charges through Ext.D1 on 15.02.2005 and when an amount of 1,29,560/- was demanded through₹ Ext.D2 on 25.04.2005, as rightly pointed out by the court below, as on the date of Ext.P2 cheque, there could not have been a liability for 5,49,850/-. As rightly pointed out by the₹ learned counsel for the appellant, of course, even on default of a single instalment, the owner, as per the hire purchase agreement, can recall the entire loan amount by way of hire

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Crl.A. No.685 of 2009

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charges. At the same time, in this particular case, what was demanded was an amount of ₹92,400/- only as on 15.02.2005. In such case, it can be said that Ext.P2 cheque was not supported by consideration as on 22.03.2005. Matters being so, there is absolutely nothing to interfere with the judgment of acquittal passed by the court below in this case. This appeal is devoid of merits and is only to be dismissed and I do so.

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In the result, this appeal is dismissed.

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Sd/- B.KEMAL PASHA, JUDGE

stu

//True Copy//

P.A to Judge.

Crl.A. No.685 of 2009

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Shriram Transport Finance Co. Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shriram Transport Finance Co. Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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