Allowed

M.S.Pillai v. Meenakshi Plastic Industries

Kerala HC25 May 2023Crl.Rev.Pet/1074/2004

Case brief

AI extract

What is this about?

The High Court of Kerala allowed four criminal revision petitions against convictions under Section 138 of the Negotiable Instruments Act. The Court quashed convictions and sentences, holding that the trial and appeal courts could not take cognizance because the complaint lacked the complainant payee's seal and did not properly authorize the Power-of-Attorney holder.

What did the court decide?

The conviction and sentence imposed upon the revision petitioner are set aside and the accused is acquitted.

M.S.Pillai Vs Meenakshi Plastic Industries — Cheque Dishonour | Kerala HC (2023)

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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 BECHU KURIAN THOMAS

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THURSDAY, THE 25^TH DAY OF MAY 2023 / 4TH JYAISHTA, 1945

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CRL.REV.PET NO. 1084 OF 2004

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CRA 846/2002 OF SESSIONS COURT, ERNAKULAM

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CC 749/1999 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, ERNAKULAM

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REVISION PETITIONER/ 2ND ACCUSED :

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M.S.PILLAI,

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PROPRIETOR, JAYAM APPLIANCE, S.R.V.ROAD, KOCHI - 11.

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BY ADV.

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SMT.M.R.JAYALATHA

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RESPONDENTS/ COMPLAINANT :

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1 MEENAKSHI PLASTIC INDUSTRIES

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KURUMBAPALLAYAM, M.G.PUTHURS POST, SULUR VIA, COIMBATORE - 641 406, REPRESENTED BY ITS POWER-OF-ATTORNEY HOLDER SHRI.BHAHALACHALAN

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2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SRI.NOUSHAD K.A., PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.05.2023, ALONG WITH Crl.Rev.Pet.Nos.1074/2004, 1075/2004 AND 1086/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Rev.Pet Nos.1084/2004 and connected cases

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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 BECHU KURIAN THOMAS

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THURSDAY, THE 25^TH DAY OF MAY 2023 / 4TH JYAISHTA, 1945

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CRL.REV.PET NO. 1074 OF 2004

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CRA 845/2002 OF SESSIONS COURT, ERNAKULAM

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CC 748/1998 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT,

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ERNAKULAM

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REVISION PETITIONER/ 2ND ACCUSED :

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M.S.PILLAI,

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PROPRIETOR, JAYAM APPLIANCE, S.R.V. ROAD, KOCHI - 11

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BY ADV SMT.M.R.JAYALATHA

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RESPONDENTS/ COMPLAINANT :

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1 MEENAKSHI PLASTIC INDUSTRIES,

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KURUMBAPALAYAM, M.G.PUUTHURS POST, SULUR VIA, COIMBATORE - 641 406, REP: BY ITS POWER OF ATTORNEY HOLDER SHRI.BHAHALACHALAN

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2 STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SRI.NOUSHAD K.A., PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.05.2023, ALONG WITH Crl.Rev.Pet.No.1084/2004 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Rev.Pet Nos.1084/2004 and connected cases

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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 BECHU KURIAN THOMAS

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THURSDAY, THE 25^TH DAY OF MAY 2023 / 4TH JYAISHTA, 1945

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CRL.REV.PET NO. 1075 OF 2004

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CRA 843/2002 OF SESSIONS COURT, ERNAKULAM

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CC 1308/1998 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT,

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ERNAKULAM

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REVISION PETITIONER/ 2ND ACCUSED :

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M.S.PILLAI,

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PROPRIETOR, JAYAM APPLIANCE, S.R.V.ROAD, KOCHI - 11.

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BY ADV SMT.M.R.JAYALATHA

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RESPONDENTS/ COMPLAINANT :

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1 MEENAKSHI PLASTIC INDUSTRIES,

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KURUMBAPALAYAM, M.G.PUTHURS POST, SULUR VIA, COIMBATORE - 641 406, REPRESENTED BY ITS POWER-OF-ATTORNEY HOLDER SHRI.BHAHALACHALAN

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2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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BY SMT.SREEJA V., PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.05.2023, ALONG WITH Crl.Rev.Pet.1084/2004 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Rev.Pet Nos.1084/2004 and connected cases

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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 BECHU KURIAN THOMAS

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THURSDAY, THE 25^TH DAY OF MAY 2023 / 4TH JYAISHTA, 1945

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CRL.REV.PET NO. 1086 OF 2004

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CRA 850/2002 OF SESSIONS COURT, ERNAKULAM

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CC 1281/1998 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT,

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ERNAKULAM

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REVISION PETITIONER/ 2ND ACCUSED :

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M.S.PILLAI,

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PROPRIETOR, JAYAM APPLIANCE, S.R.V.ROAD, KOCHI - 11.

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BY ADV SMT.M.R.JAYALATHA

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RESPONDENTS/ COMPLAINANT:

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1 MEENAKSHI PLASTIC INDUSTRIES,

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KURUMBAPALAYAM, M.G.PUTHURS POST, SULUR VIA, COIMBATORE - 641 406, REP. BY ITS POWER OF ATTORNEY HOLDER SRI.BHAHALACHALAN

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2 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SMT.SREEJA V., PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.05.2023, ALONG WITH Crl.Rev.Pet.1084/2004 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Rev.Pet Nos.1084/2004 and connected cases 5

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BECHU KURIAN THOMAS, J.

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Crl.R.P.Nos.1084 of 2004, 1074 of 2004, 1075 of 2004 & 1086 of 2004

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Dated this the 25^th day of May, 2023

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ORDER

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The revision petitioner in these four criminal revision petitions is the 2^nd accused. He has been sentenced to imprisonment and fine for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I.Act'). Aggrieved by the conviction and sentence as confirmed in appeal, these revision petitions have been preferred.

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Crl.R.P.No.1084 of 2004 is preferred against Crl.A.No.846 of 2002 on the files of the Sessions Court, Ernakulam in C.C.No.749/1999 on the files of the Judicial First Class Magistrate's Court, Ernakulam. Crl.R.P.No.1074 of 2004 is preferred against the judgment in Crl.A.No.845/2002 on the files of the Sessions Court, Ernakulam in C.C.No.748 of 1999 on the files of the Judicial First Class Magistrate's Court, Ernakulam. Crl.R.P.No.1075 of 2004 is preferred against the judgment in Crl.A.No.843/2002 on the files of the Sessions Court, Ernakulam in C.C.No.1308 of 1998 on the files of the Judicial First Class Magistrate's Court, Ernakulam while Cr.R.P.No.1086 of 2004 is preferred against the judgment in Crl.A.No.850 of 2002 on the files of the Sessions Court, Ernakulam in C.C.No.1281 of 1998 on the files of the Judicial First

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Crl.Rev.Pet Nos.1084/2004 and connected cases 6

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Class Magistrate's Court-I, Ernakulam. In all these revision petitions, the respondent/complainant is the same person and the revision petitioner is also one and the same person and therefore they are disposed of together.

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According to the complainant which is claimed to be a partnership firm, in partial discharge of liability due to it, the accused had issued separate cheques, which when presented for encashment, returned dishonoured and consequent to statutory notice when the amounts were not paid, complaints were preferred. The following tabular column regarding the details of the cheque issued would suffice consideration.

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Sl. No.	Crl.R.P. No.	Appeal No.	C.C. No.	Cheque No.	Date	Amount
1	1084/2004	846/2002	749/99	131337	15/08/97	10000/-
2	1074/2004	845/2002	748/99	131338	25/08/97	10000/-
3	1075/2004	843/2002	1308/98	131336	05/08/97	10000/-
4	1086/2004	850/2002	1281/98	131339	06/09/97	10,000/-

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The trial court after analysing the evidence adduced found the accused guilty and sentenced the second accused to undergo simple imprisonment for three months and to pay a fine amount of Rs.11,000/in C.C.No.749 of 1999. The very same punishment was imposed in all

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Crl.Rev.Pet Nos.1084/2004 and connected cases 7

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the other cases also. The first accused named was the proprietory concern while the second accused was its proprietor.

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In the appeal preferred by the 2^nd accused, the appellate court after re-appreciating the evidence came to the conclusion that the accused is guilty and confirmed the conviction and sentence and thereby dismissed the appeals. It is thus the revision petitioner has approached this Court under Section 397 of the Code of Criminal Procedure.

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As a court of revision, the jurisdiction to interfere in the factual findings rendered by the trial court as well as the appellate court is limited. Each and every factual finding cannot be interfered with. With the above legal principles in mind, when the facts and the evidence adduced in the case are appreciated, it is noticed that the complainant is stated to be a partnership firm by name 'Meenakshi Plastic Industries'. The payee as seen from the cheques involved in these cases is the firm. The cause title of the complaint in all these cases indicate that the complaint was filed by the partnership firm through its power of attorney holder, significantly, the seal of the partnership firm is absent. Cognizance of an offence under Section 138 of the N.I. Act can be taken as per Section 142 of the NI Act only if a complaint in writing is made by the payee or holder in due course. There is nothing in the complaint to indicate that the payee had filed the complaint. The details of the partnership firm or the seal of the firm is wholly absent in the complaint. Further, the power of attorney that is produced and marked in evidence

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Crl.Rev.Pet Nos.1084/2004 and connected cases 8

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does not indicate that the same was executed by the firm. A reading of the power of attorney reveals that it is only the Managing Partner who has executed the power of attorney and the same does not refer to any authorisation given on behalf of the firm to appoint such a power of attorney and nor does the power of attorney contain the seal of the firm. It is also noticed that there is neither any averment nor any evidence that the alleged power of attorney is aware about the transaction involved in the instant case.

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In the nature of the complaint that has been filed and the nature of power of attorney that has been produced, it is evident that the complaint is not one filed in writing by the payee. In the absence of a complaint in writing made by the payee, the court could not have taken cognizance of the offence alleged.

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Even in the evidence adduced before the trial as noted earlier, it is not evident as to whether there was any proper authorisation for the power of attorney holder to represent the partnership firm. Since the power of attorney produced does not contain any seal of the firm nor does it refer to any authorisation by the partners of the firm and in the absence of any evidence to indicate conferment of any authority upon the Managing Partner to appoint a power of attorney by himself, this Court is of the view that the requirement of Section 142(1)(a) is not satisfied. The finding of guilt and sentence imposed upon the accused in all the above referred cases is therefore irregular, improper and perverse, warranting

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Crl.Rev.Pet Nos.1084/2004 and connected cases 9

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interference in the revisional jurisdiction of this Court.

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In view of the above, these four revision petitions are allowed

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and the conviction and sentence imposed upon the revision petitioner in C.C.No.749 of 1999, C.C.No.748 of 1999, C.C.No.1308 of 1998 and

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C.C.No.1281 of 1999, all on the files of the Judicial First Class Magistrate's Court, Ernakulam is set aside and the accused is acquitted.

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The criminal revision petitions are allowed.

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Sd/- BECHU KURIAN THOMAS, JUDGE

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RKM

M.S.Pillai v. Meenakshi Plastic Industries

Case brief

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M.S.Pillai v. Meenakshi Plastic Industries

Case brief

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