Rajesh vs Ambili

A. Badharudeen, J

Judgment in S.T.No.152/2012 dated 31.12.2014 on the files of the Judicial First Class Magistrate Court-II, Karunagappally, is under challenge in this appeal at the instance of the complainant. The sole accused before the trial court is the 1st respondent herein and State of Kerala represented by Public Prosecutor is the 2nd respondent.

Heard the learned counsel for the appellant/complainant, the  learned  counsel  for  the  1st respondent  as  well  as the  learned  Special Public  Prosecutor  appearing  for  the  2nd respondent,  in  detail. Perused  the trial court records and the judgment under challenge.

The  parties  in  this  appeal  will  be  referred  hereafter  with reference to their status before the trial court as `the complainant’ and `the accused’.

On dishonour of a cheque dated 05.03.2011 for Rs.2,50,000/-, alleged to be issued by the accused to the complainant, the complainant launched prosecution alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (`N.I Act’ for short hereinafter), by the accused. The trial court proceeded with trial  and recorded the evidence. PW1 was examined  and Exts.P1  to P7 were marked on the side of the complainant. No defense evidence was adduced.

On  appreciation  of  the  evidence,  the  learned  Magistrate acquitted  the  accused  on  the  finding  that  the  accused  did  not  commit  the offence under Section 138 of the N.I Act. It is pointed out by the learned counsel for the complainant  that though PW1 examined in this  case is  the power  of attorney  holder  of the complainant  and he had direct  knowledge regarding the transaction, his evidence was rejected by the learned Magistrate on the ground that, in the preliminary witness schedule filed along  with  the  complaint,  the  name  of  PW1  was  not  cited. Secondly,  no evidence was adduced by the complainant to show that the complainant had Rs.2,50,000/- in his hands to advance to the accused, as contended. It is submitted by the learned counsel for the appellant that, in fact, the financial capacity of the complainant or the source of the money not at all disputed by the accused. According to the complainant,  these reasons are insufficient to record acquittal. Therefore he pressed for interference in the verdict impugned.

Whereas the learned counsel for the accused/1st respondent supported the trial court verdict and submitted that no evidence was adduced by the complainant  to prove the transaction  which led to the execution of Ext.P1 cheque and, therefore, the verdict would only be liable to be sustained.

In consideration of the rival submissions, the points arise for consideration are:

(i) Whether the trial court went wrong in finding that the accused did not commit any offence under Section 138 of the N.I Act?

(ii) Is  it  necessary  to  interfere  with  the  judgment  impugned in any manner?

(iii) The order to be passed?

Points (i) to (iii)

In this case, in order to prove the transaction and execution of Ext.P1 cheque by the accused in favour of the complainant, one Dinesh Lal, the Power of Attorney Holder of the complainant, was examined  as  PW1. He  filed  chief  affidavit  in  support  of  the  prosecution case and his evidence is that he was a close friend of the complainant and he had witnessed  the transaction  involved  in this  case and he had full  and complete knowledge regarding the transaction which led to execution of Ext.P1 cheque. He also deposed about his involvement in chitty business. It was through him, Ext.P1, the original cheque and Ext.P2 dishonour memo, Ext.P3 cheque return memo, Ext.P4 Advocate notice, Ext.P5 postal receipt, Ext.P6 postal acknowledgment card and Ext.P7 Power of Attorney were  tendered  in  evidence. Thus  the  evidence  of  PW1, who is  the  Power of Attorney Holder, would show that he had witnessed the transaction which  led  to  execution  of  Ext.P1  cheque  and  he  deposed  that  the  accused borrowed Rs.2,50,000/- from the complainant on 05.03.2011 from the residence of the complainant. He had answered all queries put to him during cross examination and his evidence regarding the transaction and execution of Ext.P1 not at all shaken. However, the learned Magistrate took a hyper technical view in this case to hold that since the name of PW1 was not cited in the preliminary witness schedule, his evidence could not be believed. In this connection, it is pertinent to note that the legal position is well settled on the point that a Power of Attorney Holder is competent to file a complaint and he is equally competent to give evidence on  behalf  of  the  complainant. But  it  is  essential  that  when  the  Power  of Attorney Holder of the complainant gives evidence, he should be aware of the transaction which led to execution of Ext.P1 cheque, otherwise his evidence being hearsay has no probative value.

Here PW1 examined is the Power of Attorney Holder of the complainant and he had given evidence, supporting the transaction led to execution of the cheque, as a person who witnessed the transaction and consequential issuance of the cheque by the accused. But the learned Magistrate was not inclined to believe the evidence of PW1 for the reason that  his  name  was  not  cited initially in  the  witness  schedule  filed by  the complainant. In this connection, it is held that, in a prosecution generated on a private complaint, if there is omission in giving the name of one among witnesses in the initial witness schedule, the same is not a reason to disbelieve  the  evidence  of  such  a  witness  for  the  said  reason  alone,  who got examined and his evidence was not shaken even during cross examination. Therefore,  the  learned  Magistrate  went  wrong  in  discarding the evidence of  PW1. In fact, by the evidence of  PW1 the complainant successfully proved the transaction that led to the execution of Ext.P1 cheque so as to canvass the benefit of the presumptions under Sections 118 and  139  of  the  N.I  Act  in  favour  of  the  complainant. In  the  instant  case, there  is  nothing  available  to  hold  that  these  presumptions  are  in  any  way rebutted by the accused.

Regarding  the  finding  of  the  learned  Magistrate that  no evidence was tendered to show that the original complainant was financially sound enough to lend Rs.2,50,000/- to the accused on the material day, is also of least significance in the instant case. That is to say, in  a prosecution  alleging  commission  of  offence  under  Section  138  of  the N.I Act, the accused can challenge the financial capacity of the complainant to advance the money so as to make the prosecution allegation dis-believable. But for which, there must be a challenge by the accused during the trial stage and failure to challenge the same would stand  to  hold  that  the  accused  was  convinced  of  the  financial  capacity  of the complainant to advance the cheque amount involved in the case. In the instant case, no challenge was raised by the accused stating that the complainant was incapable of giving Rs.2,50,000/-, as alleged, on 05.03.2011. Thus the accused, in fact, did not dispute the financial capacity  of  the  complainant  in  any  manner. In  such  a  case,  no  burden  is cast  upon  the  complainant to  prove  his  financial  capacity  to  advance  the said amount, and the same cannot be a reason to disbelieve or non-suit the complainant.

For the above reasons, the verdict of the Judicial First Class  Magistrate  Court-II,  Karunagappally  would  require  interference  and accordingly the same is liable to be set aside.

In the result, the appeal stands allowed. The verdict of acquittal under challenge stands set aside and the 1st respondent/accused is found to be guilty for the offence punishable under Section 138 of the N.I Act and she is convicted for the said offence. Accordingly, she is sentenced for the said offence as under:

(i) The 1st respondent/accused is sentenced to undergo imprisonment  till  rising  of  court  and  to  pay  fine  of  Rs.4,00,000/-  (Rupees Four lakh only) and in default of payment of fine, to undergo default imprisonment for a period of six months.

(ii) The 1st respondent/accused is directed to appear before the Judicial First Class Magistrate Court-II, Karunagappally, on 10.04.2026 to undergo the modified sentence and in the event of failure to appear,  the  learned  Magistrate  is  directed  to  execute  the  sentence  without fail.

Registry is directed to forward a copy of this judgment to the Judicial First Class Magistrate Court-II, Karunagappally, for compliance and further steps.