Kerala High Court

Sebastian vs Mathai on 7 July, 2025

                                             2025:KER:49485

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN

     MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947

                    CRL.A NO. 1901 OF 2008

      AGAINST  THE   ORDER/JUDGMENT DATED 05.08.2008 IN
Crl.L.P. NO.931 OF 2008 OF THIS COURT ARISING OUT OF THE
ORDER/JUDGMENT DATED 04.02.2003 IN CC NO.1133 OF 2000 OF
JUDICIAL MAGISTRATE OF FIRST CLASS - I, CHALAKUDY

APPELLANT:

     SEBASTIAN
     CHALAKKUDY HOUSE, CHALAKKUDY,
     REP. BY HIS POWER OF ATTORNEY HOLDER, JOSEPH, S/O.
     KUNJUVAREED,, KARAYAMPARAMBIL HOUSE, ALOOR VILLAGE,
     VELANCHIRA DESOM, THRISSUR DISTRICT.

      BY ADV SHRI.G.SREEKUMAR (CHELUR)

RESPONDENTS:

 1    MATHAI
      KANNAMKODAMVEETTIL, ELINJIPRA.P.O,
      CHOWKA, CHALAKKUDY.

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

     BY ADVS. 
     SRI.P.M.RAFIQ
     SRI.P.VIJAYA BHANU (SR.)
     SRI.VIPIN NARAYAN

     SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
     07.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
     FOLLOWING:
 Crl.A.1901 OF 2008

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                               JUDGMENT

This appeal has been preferred by the complainant in

C.C.No.1133 of 2000 on the file of the Judicial First Class Magistrate

Court, Chalakkudy, challenging the judgment of acquittal rendered in

the said case, dated 04.02.2003, alleging commission of an offence

punishable under Section 138 of the Negotiable Instruments Act (for

short "N.I. Act"). The parties in this appeal shall be referred to as

the complainant and the accused hereafter.

2. The case of the complainant in brief is as follows;

The accused owed an amount of Rs.21 lakhs to the

complainant. In discharge of the said liability, the accused issued a

cheque drawn on the account maintained by him with the State Bank

of Travancore, Chalakkudy branch. When the complainant presented

the said cheque for collection, the same was returned dishonored,

stating the reason 'funds insufficient'. Thereafter, the complainant

issued a notice to the accused intimating the factum of dishonor of

the cheque and demanding the payment of the cheque amount.

Though the said notice was duly served, the accused neither made

the payment nor issued any reply. Hence, the accused is alleged to

have committed an offence punishable under Section 138 of N.I. Act. Crl.A.1901 OF 2008

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3. Before the trial court, the complainant was examined as

PW1 and Exts. P1 to P8 were marked. On the side of the accused, no

oral or documentary evidence was adduced.

4. After consideration of the oral and documentary evidence

on record and after hearing both sides, the trial court by judgment

dated 04.02.2003, found the accused not guilty of the offence

punishable under Section 138 of N.I. Act, and accordingly acquitted

him. Aggrieved by the said finding and order of acquittal, the

complainant has preferred this appeal.

5. I heard Sreekumar G., the learned counsel appearing for

the appellant, Sri.P.M.Rafiq, the learned counsel appearing for the 1st

respondent and Smt.N.S. Hasna Mol, the learned Public Prosecutor.

6. The learned counsel for the appellant would submit that

the trial court acquitted the accused in a hasty and unjustified

manner without properly appreciating the facts and evidence brought

on record. According to the counsel, the trial court wrongly entered

into a finding that the power of attorney holder who tendered

evidence in this case on behalf of the complainant did not have any

personal knowledge regarding the transaction in this case, and his

evidence is not sufficient to prove the alleged transaction. According Crl.A.1901 OF 2008

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to the counsel, as the execution of the cheque by the accused stands

fully established and therefore, the complainant successfully laid the

foundation for drawing the presumption under Section 139 of N.I.

Act. However, the trial court acquitted the accused without taking

note of the fact that the accused miserably failed to discharge the

said presumption. Per contra, the learned counsel for the respondent

submitted that the complainant miserably failed to prove his case.

The counsel further urged that the power of attorney holder of the

complainant, who tendered oral as well as documentary evidence

before the court, did not have any personal knowledge of the

transaction in question, and he is incompetent to depose about the

same. According to the learned counsel, the trial court rightly

acquitted the accused, and hence, no interference is required in the

judgment impugned by way of this appeal.

7. From the rival contentions raised and perusal of the

records, it is clear that the core question that needs to be determined

in this appeal is whether the complainant had succeeded in proving

the transaction alleged in this case. Only if the transaction alleged in

this case is proved, the legal presumption under Section 139 of N.I.

Act comes into place, shifting the burden onto the accused to rebut Crl.A.1901 OF 2008

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the presumption. In the complaint, it is specifically mentioned that

the accused owed an amount of Rs.21 lakhs, and towards the

repayment of the said amount, Ext.P2 cheque was issued. However,

when the cheque was presented for encashment, it was dishonored

due to insufficiency of funds in the account of the accused. From the

documentary evidence adduced in this case, it is demonstrably clear

that, after the dishonor of the cheque, a notice was issued as per the

statute, and the same was duly received by the accused. Even the

accused does not have a case that on receipt of the said notice, he

paid any amount. Therefore, the entitlement of the complainant to

initiate prosecution under Section 138 of N.I. Act stands established

in this case.

8. However, as already mentioned, the evidence regarding

the transactions that occurred in this case was adduced through PW1,

who is none other than the power of attorney holder of the

complainant. It is no longer res integra that, as per settled legal

position, a power of attorney holder can depose and give evidence on

behalf of the complainant, provided he has personal knowledge about

the transaction in question. In other words, a power of attorney

holder can depose about the matters about which he has direct Crl.A.1901 OF 2008

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personal knowledge.

9. The competence of a power of attorney holder to institute a

complaint, give evidence on behalf of a complainant, etc., are vividly

dealt with by the Hon'ble Supreme Court in A.C. Narayanan v.

State of Maharashtra (2014 (11) SCC 790). In the said

decision, the Hon'ble Supreme Court held that;

"(i) Filing of complaint petition under section 138 of NI Act through power of attorney holder is perfectly legal and competent.

(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the complainant to make a specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(iv) In the light of section 145 of NI Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under section 138 of the NI Act and the Crl.A.1901 OF 2008

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Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under section 138 of the NI Act.

(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney.

Nevertheless, the general power of attorney itself can be cancelled and be given to another person."

In short, it is legally permissible for a power of attorney

holder to enter into the box and to depose on behalf of the

complainant. However, it is incumbent upon the complainant to

make a specific assertion in the complaint regarding the power

of attorney holder's personal knowledge of the transaction in

question. A perusal of the complaint in the present case reveals

that no such assertion has been made in it. I am not oblivious of

the fact that during cross-examination, PW1, the power of

attorney holder, stated that he had personal knowledge

regarding the transaction in this case. But the said statement of

PW1 during cross-examination will be of no use in the absence of