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2009(2) Crimes 457 (Ker.)
KERALA HIGH COURT
V. Giri, J.
Kasargod Self Employees
Financing Co. —Appellant
versus
State of Kerala —Respondent
Crl. Appeal No. 549 of 2008 alongwith Connected Cases
Decided on 3.9.2008
For the Appellants:Mr. K. Jaju Babu, Mr. M.U. Vijayalakshmi, Mr. C.S. Sheeja, Mr. M.V. Bipin and Mr. S. Brijesh Mohan, Advocates.
For the Respondents:Mr. T.K. Vipindas, Mr. Bechu Kurian Thomas, Mr. T.G. Rajendran, Mr. M. Ramesh Chander, Mr. Suresh Kumar Kodoth, Mr. M. Sasindran, Advocates and Mr. C.M. Kammappu and Mr. P.K. Muhammed Puzhakkara (Public Prosecutor).
IMPORTANT POINT
Where a partnership firm is complainant and it stands dissolved and no application by a competent person is given to continue prosecution in terms of Section 302 Cr.P.C., the court would proceed on premise that complainant is absent.
Headnote:(i) Companies Act, 1956—Section 391, 394—Merger—Ongoing partnership firm—Decision by partners to Transfer all assets and liabilities of the firm to a public limited company of same name—There came into being dissolution of firm by Act of the parties—Firm ceased to be an ongoing concern. (Para 6)
(ii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 302, 256—Prosecution—Continuation of—Cheque issued for discharge of legally enforceable debt in favour of complainant partnership firm dishonoured for “funds insufficient” —Firm was in existence when cheque was issued and when complaint was instituted—Complainant firm ceased to exist during pendency of proceedings as its partners floated a company of same name and transferred all assets and liability of the firm to the public limited company—No application given by the company at any time before acquittal of accused for continuation of prosecution answering description of legal representative of the complainant—Complainant firm rightly treated as bereft of a representation after dissolution of the firm. (Para 8)
(iii) Criminal Procedure Code, 1973—Sections 255(1), 256(1), 302—Order of acquittal—Complainant a firm—On dissolution a cessation of the firm comes into being—Unless there is application by a competent person entitled to continue to represent the interest of the complainant and such application is accepted by the court, the court would proceed on premise that complainant is absent—Accused would be entitled to acquittal under Section 256(1) of the Code. (Para 9)
Result: Appeal dismissed.
V. Giri, J—The appellant in all these appeals is one and the same person and after hearing learned counsel on a preliminary issue, it was felt that there is a common issue which arises for consideration in these cases. Therefore, they were heard together and are being disposed off by a common judgment.
2. A crucial issue arises for consideration in Cri. A. 549/2008, which is against the order of acquittal in C.C. No. 662/1999 on the files of the Court of Chief Judicial Magistrate, Kasargod. To an extent finding on this issue in Criminal A. 549/2008 would have a bearing in the other appeals as well and therefore, I propose to consider that in the first instance.
3. The complainant in C.C. No. 662/1999 on the file of the Court of Chief Judicial Magistrate, Kasargod is the appellant herein. The complainant is described as M/s. Kasargod Self Employees Financing Company (R) represented by Us Power of Attorney holder one K. Satheesan. Allegations in the complaint are to the effect, that the complainant is a partnership firm and its affairs were being managed by its Managing Partner, one Jayasheela, that for discharging a legally enforceable debt to the tune of Rs. 2,63,000 the accused had issued Ext. P2 cheque in favour of the complainant. When the cheque was presented for collection, the same was dishonoured and returned, with the endorsement “funds insufficient”. The complainant sent a notice on 27.7.1999 demanding payment of the amount covered by the cheque. But payment was not made and hence the complaint was filed. That was taken cognizance of and case was registered as C.C. No. 662/1999.
4. PW1, the Power of Attorney holder of the complainant firm was examined. Exs. P1 to P8 were marked. In the course of the cross examination of PW1, he deposed that a public limited company bearing the same name as the complainant firm took over the firm in the year 2000 and the firm has therefore merged in the company. To a question as to whether the company had executed any document, authorizing him to conduct the case, he answered in the negative. But he further stated that he is a Director of the Company. Apparently, the accused challenged the competence of PW1 to represent the complainant and one point which arose for consideration was whether PW1, the Power of Attorney holder has the right to continue with the case especially when the firm by name Kasargod Self Employees Financing Company is not in existence. Appreciating the testimony of P W1, the Court below found that going by the version of PW1 the original firm namely the complainant firm is not in existence in as much as the same has merged with the public limited company. The General Power of Attorney was executed in favour of PW1, when the firm was in existence. The Court below found that the Company has not sought for permission of the Court to continue with the prosecution and for allowing PW1 to continue with the case. Reference in this regard was made to the judgment of the Supreme Court in Jimmy Jahangir Madan v. Bally Cariyappa Hindley (D) by LRs.1 Court below then specifically found that the complainant has not turned to give evidence to substantiate the prosecution case and found the said point, in favour of the accused. Thereafter, the Court below proceeded to consider the issue as to whether the accused had issued the cheque in discharge of a liability and whether the offence under Section 138 of the Negotiable Instruments Act has been committed. Court below found the said issue also against the complainant, and ultimately the accused was acquitted under Section 255 (1) Cr. P.C. This has been challenged in the appeals.
5. I heard Mr. Jaju Babu, learned counsel for the appellant/complainant and Mr. Vipindas, learned counsel for the accused. I also heard Mr. T.G. Rajendran, Mr. Suresh Kumar Kodoth and Mr. Bechu Kurian, learned counsel appearing for the accused in other appeals. I will deal with the individual cases at the appropriate stage. I think it is appropria
