ROYAL AUTO CREDITS Vs. STATE OF KERALA

JUDGEMENT

(1.) THE complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as it is aggrieved by the order dated 07/10/2006 in C.C.No.967 of 2002 of the court of the Judicial Magistrate of the First Class, Muvattupuzha by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) THE case of the complainant/appellant is that, it is a partnership firm engaged in the hire purchase business and as per the hire purchase agreement dated 8/3/2001 between the complainant and the accused, who is the hirer, the accused has to pay an amount covered by the hire purchase agreement, with respect to a Jeep bearing Reg.No.KL.7.K.1741. According to the complainant, the accused has defaulted in paying the installment and on demand the accused paid the defaulted amount as per Ext.P4 cheque dated 23/07/2002 for an amount of Rs.53,900.00. It is the further case of the complainant that, when the said cheque presented for encashment, the same was dishonoured for want of sufficient fund in the account of the accused and the accused has not paid the amount in spite of a statutory notice served on him and thus the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PW.1 was examined from the side of the complainant and produced Exts.P1 to P9. From the side of the defence, DW.1 was examined and produced Ext.D1 post card. The trial court, after considering the entire evidence and materials under point No.1, found that, nobody is seen authorised by M/s.Royal Auto Credits, Muvattupuzha, the complainant firm to represent it on 13/09/2002 to prosecute or defend against the judicial proceedings. Under point Nos.2 and 3 it is further found that, the accused has no legally enforceable debt or liability and no presumption is available in favour of the complainant. Accordingly, it is found that, the accused is not guilty of the said offence and he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal.

(3.) THE learned Magistrate has specifically found that, Ext.P1 is the attested copy of the power of attorney of the complainant firm appointing one Dileep P.Sreenivas as power of attorney of the company. Ext.P1 is a deed dated 3/1/2005. The learned Magistrate has also found that as per the resolution of M/s.Royal Auto Credits Muvattupuzha dated 13/11/2004, a resolution was passed by the firm to appoint Dileep P.Sreenivas as the power of attorney. The said resolution is marked as Ext.P2. It is further found by the learned Magistrate that, later, on 03/08/2005, the complainant has produced a true extract of the resolution of M/s.Royal Auto Credits Muvattupuzha for the appointment of Dileep P.Sreenivas as power of attorney holder. Another resolution dated 13/11/2004 is marked as Ext.P9. Thus, on the basis of Ext.P9, Dileep P.Sreenivas was appointed as power of attorney holder on 03/01/2005, marked as Ext.P8. But the learned Magistrate has further found that, the complaint was filed on 13/09/2002 and consequently the further question considered is who was authorised by the firm to file the complaint as on 13/09/2002?. As per the complaint, the same was presented by one Eldho Paul, but no document is produced to show that Sri.Eldho Paul or Dileep P.Sreenivas has any authorisation to present the complaint on behalf of the complainant on 13/09/2002. All the documents produced by the complainant to prove the authority of the competency of the person represented by the complainant are not legal and valid and the same are against the claim of the complainant. So, I find no fault with the learned Magistrate in holding that nobody is seen authorised by M/s.Royal Auto Credits Muvattupuzha to represent the complainant company as on 13/09/2002 to prosecute the complaint.