[Cites 9, Cited by 0]

Kerala High Court

Hameed.K vs State Of Kerala on 18 February, 2026

                                                              2026:KER:13894
Crl.R.P.No.85/2018
                                        -:1:-

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                        THE HONOURABLE MR. JUSTICE G.GIRISH

    WEDNESDAY, THE 18TH DAY OF FEBRUARY 2026 / 29TH MAGHA, 1947

                            CRL.REV.PET NO. 85 OF 2018

       AGAINST THE JUDGMENT DATED 30.08.2016 IN Crl.A NO.61 OF
2016 OF ADDITIONAL DISTRICT COURT II, KOZHIKODE, ARISING OUT OF
THE JUDGMENT DATED 25.01.2016 IN ST NO.1736 OF 2014 OF JUDICIAL
              MAGISTRATE OF FIRST CLASS, NADAPURAM

REVISION PETITIONER/APPELLANT/ACCUSED:

                     HAMEED.K,
                     S/O. AMMAD,
                     AGED 46 YEARS,
                     KUNIYIL HOUSE,PULIYAVU,
                     PARAKKADAVU VALAYAM P.S LIMIT,
                     KOZHIKODE DISTRICT,
                     PIN - 673501


                     BY ADVS.SRI.M.G.SREEJITH
                             SHRI.BOBBY MATHEW KOOTHATTUKULAM



RESPONDENTS/ RESPONDENTS & STATE/COMPLAINANT:

        1            STATE OF KERALA
                     REPRESENTED BY PUBLIC PROSECUTOR,
                     HIGH COURT OF KERALA,
                     KOCHI-31

        2            SREE GOKULAM CHITS FINANCE COMPANY PVT. LTD.
                     BY POWER OF ATTORNEY HOLDER C.V SIVADASAN
                     S/O.GOVINDAN NAMBIAR,
                     AGED 50 YEARS,
                     MUKKATTUKUNIYIL HOUSE,
                     ERAMALA AMSOM,
                     ORKKATERY,
                     KOZHIKODE DISTRICT,
                     PIN - 673501
                                                            2026:KER:13894
Crl.R.P.No.85/2018
                                        -:2:-

                     ADV. SRI. K. VIDYASAGAR FOR R2
                          SRI. JINU P. BINU AMICUS CURIAE
                          SRI. SANAL P. RAJ, PUBLIC PROSECUTOR




     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 13.02.2026, THE COURT ON 18.02.2026 PASSED THE FOLLOWING:
                                                             2026:KER:13894
Crl.R.P.No.85/2018
                                         -:3:-


                                        ORDER

The petitioner herein is the accused in S.T.No.1736/2014 on the

files of the Judicial First Class Magistrate Court, Nadapuram, a case

relating to the commission of offence under Section 138 of the

Negotiable Instruments Act,1881(in short, 'NI Act'). He was convicted

and sentenced by the learned Magistrate to imprisonment till the rising of

the Court and a fine of Rs.2,59,900/-. A default clause of simple

imprisonment for six months was provided for non-payment of fine

amount. The Appellate Court confirmed the conviction and sentence but

reduced the default sentence to simple imprisonment for three months.

2. Since there was no representation from the part of the

revision petitioner on consecutive posting dates, notice was issued to him

intimating the adjournment of the case, and also informing him that the

case would be decided in his absence, if there is no representation on

the adjourned posting date. Since the petitioner did not turn up or

engage any counsel even after receipt of the above notice, this Court

appointed Adv. Mr. Jinu P Binu, as Amicus Curiae to represent the

revision petitioner.

2026:KER:13894

3. Heard the learned Amicus Curiae representing the revision

petitioner, the learned counsel for the second respondent and the

learned Public Prosecutor representing the State of Kerala.

4. Before the Trial Court, the authorised representative of the

complainant company had tendered oral evidence as PW1, and brought

on record 11 documents as Exts P1 to P11. Among the above 11

documents, Ext P7 was the extract of the resolution passed by the Board

of Directors of the complainant company authorising the signatory to the

complaint to represent the complainant company. It is by relying on the

aforesaid evidence that the Trial Court convicted and sentenced the

petitioner for the commission of offence under Section 138 of the NI Act.

5. The learned Amicus Curiae argued that the complaint has

been instituted by a person by name 'C.V. Sivadasan' in his capacity as

the Power of Attorney Holder of the complainant company, but the

aforesaid Power of Attorney had not been produced before the Trial

Court to substantiate his authority to represent the complainant

company. Thus, it is argued that the prosecution is prima facie not

maintainable due to the failure of the representative of the complainant

to produce the relevant document mentioned in the complaint as the

document of authority to represent the complainant company.

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6. Per contra, it is argued by the the learned counsel for the

second respondent that the non-production of the Power of Attorney is

of no consequence since the signatory to the complaint has been duly

authorised by the resolution passed by the Board of Directors of the

complainant company to institute the prosecution against the petitioner.

7. The question as to who can be the representative of a

complainant company in a criminal prosecution under Section 138 of the

NI Act, by a complaint filed under Section 142 of the said Act, has been

dealt with by the Hon'ble Supreme Court in Naresh Potteries (M/s) v.

M/s Aarti Industries [2025 KHC 6001 : AIR 2025 SC 886]. It has

been observed by the Hon'ble Supreme Court in paragraph No.16 of that

judgment as follows:

"16. While this Court was primarily concerned with the issue relating to the exemption available against examining a public servant in view of Section 200(a) of the CrPC, this Court nevertheless clarified that the requirement of Section 142 of the NI Act that the payee should be the complainant would be met if the complaint is in the name of the payee. Where the payee is a company, this Court observed that the complaint should necessarily be filed in the name of the company, if the company is the complainant. In such cases, this Court held that a company can be represented by an employee or even a non-employee authorised and empowered to represent the company either by a resolution or by a power of attorney. As a consequence of the aforesaid discussion, this Court concluded that for the purposes of Section 142 of the NI Act, the company will be the complainant and for the 2026:KER:13894

purposes of Section 200 of the CrPC, its employee who represents the company, will be the de facto complainant while the company will remain the de jure complainant, regardless of any change in the de facto complainant."

8. The aforesaid decision has been rendered by the Hon'ble

Supreme Court following an earlier decision of the Apex Court in

National Small Industries Corporation Ltd. v. State (NCT of

Delhi) & Ors.[(2009) 1 SCC 407] wherein it has been held that a

company can be represented by an employee or even by a

non-employee authorised and empowered to represent the company

either by a resolution or by a Power of Attorney. In the light of the

aforesaid decisions of the Hon'ble Supreme Court, it cannot be said that

the signatory to the complaint in the present case was incompetent to

represent the company due to the non-production of the Power of

Attorney, since the extract of the resolution of the Board of Directors

authorising the above person to represent the company in the criminal

prosecution against the petitioner, had already been brought on record.

9. The learned Amicus Curiae representing the revision

petitioner argued that the evidence adduced by the complainant/second

respondent before the Trial Court did not reveal the exact date when the

petitioner had executed the impugned Ext P1 cheque. It is not possible

for this Court to consider the above challenge since the Trial Court as 2026:KER:13894

well as the Appellate Court, on analysis of the evidence, came to the

concurrent findings that the complainant had succeeded in establishing

the execution and issuance of Ext P1 cheque by the petitioner towards

remittance of the amount which stood outstanding in the chitty

transaction with him. The revisional powers of this Court under Section

397 Cr.PC could be exercised only in such cases where the courts below

rendered the verdicts in total disregard to the settled principles of law, or

resorted to perverse appreciation of evidence.

10. In Sanjabij Tari v. Kishore S Borcar [2025(6) KHC 250

SC] the Hon'ble Supreme Court, while dealing with the limitations in the

exercise of revisional jurisdiction of the High Court, held as follows:

"27. It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings [See: Bir Singh (supra)]. This Court is of the view that it is not for the Revisional Court to re-analyse and re-interpret the evidence on record. As held by this Court in Southem Sales & Services and Others v. Sauermilch Design and Handels GmbH, it is a well-established principle of law that the Revisional Court will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.

28. Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court."

2026:KER:13894

Thus the law is well settled that High Courts should be loath in

interfering with the concurrent findings of the Trial Court and

Appellate Court, in the absence of perversity looming large from the

evidence on record.

11. In view of the settled principles of law in the above

regard, it is not possible for this Court to dislodge the concurrent

findings of the courts below that the petitioner committed offence

under Section 138 of the NI Act. The Trial Court as well as the

Appellate Court awarded the sentence which is perfectly reasonable

and commensurate with the gravity of the offence involved in this

case. That being so, there is absolutely no scope for interfering