The holder of a Power of Attorney can initiate proceedings on behalf of a firm in cases of cheque dishonour, and the presumption of liability under the N.I. Act persists until disproven by the accused.

O R D E R

These revisions are filed challenging judgments passed by Additional Court of Sessions (Adhoc-II), Ernakulam (for short, ‘the appellate court’) in Crl.A. Nos.278/09 and 279/09.

2. Crl. Appeals referred to above have been filed against judgments passed by Judicial First Class Magistrate Court-II, Kochi (for short ‘trial court’) in CC Nos.269 and 270 of 2006 on 23.03.2009. The revision petitioner in both cases is the appellant before the appellate court and accused before the trial court. The respondents are respondents before the appellate court and complainant before the trial court. The prosecutions numbered as CC Nos.269/06 and 270/06 were launched by the 1st respondent company under Section 142 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) alleging that an offence punishable under Section 138 N.I. Act was committed by the accused. The revision petitioner faced trial before Judicial First Class Magistrate Court-II, Kochi in both cases. He was found guilty and convicted in both cases. In CC No.269/06 he was sentenced to undergo imprisonment till rising of the court and to deposit a sum of `17,00,000/- as fine, which on being deposited was directed to be given to the complainant as compensation under Section 357 (1)(b) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). He was also directed to undergo simple imprisonment for six months in case of default in payment of the fine amount. In CC No.270/06 he was sentenced to undergo imprisonment till rising of the court and to deposit a sum of `9,00,000/- as fine which on payment was directed to be given to the complainant as compensation under Section 357 (1) (b) Cr.P.C and to undergo simple imprisonment for six months in case of default in payment of the fine amount.

3. The judgments of the trial court were assailed in Crl.A.

Nos.278/09 and 279/09 and the appellate court dismissed the appeals and thus confirmed the finding of guilt, orders of conviction and sentence. Aggrieved by the judgments passed as above, the accused has approached this Court in the revisions on hand.

4. Parties to these revision petitions are referred to hereinafter in accordance with their status before the trial court as the complainant and the accused.

5. Sri.Abraham John, the learned counsel represented the accused in both cases. It was contended by the learned counsel that the judgments of the trial court as well as the appellate court suffer for illegality, impropriety and infirmity. According to him, the trial court as well as the appellate court failed to appreciate the evidence on record in its correct perspective and therefore, is unjustified in finding the accused guilty for the offence under Section 138 N.I Act. According to him, the trial court ought to have found that the accused had successfully rebutted the legal presumption regarding the existence of a legally enforceable debt on the strength of the evidence adduced by him in defence. It is contended by the learned counsel that sustainability of the complaints itself are under stake when viewed in the light of the dictum laid down inNazar v. State of Kerala [ 2008(1) KLT 28 ]. It was held in the case that the complaint lodged by a firm in the name of the firm is not maintainable in the absence of an analogus provision in Cr.P.C like Order XXX in the Code of Civil Procedure, 1908. According to the learned counsel, a contention in that regard was specifically raised before the trial court as well as the appellate court but it was not adverted to in the correct perspective. According to him, in the prosecutions on hand, the complainant firm was represented by its Power of Attorney Holder who also mounted the witness box to depose on behalf of the complainant as PW1. According to him, the Power of Attorney Holder cannot step into the shoes of the complainant to depose on it’s behalf and therefore oral evidence tendered by him as PW1 ought to have been discarded by the trial court. The learned counsel has cited