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2025 Supreme(Online)(Ker) 26738
IN THE HIGH COURT OF KERALA AT ERNAKULAM
JOBIN SEBASTIAN, J
SEBASTIAN CHALAKKUDY HOUSE – Appellant
Versus
MATHAI KANNAMKODAMVEETTIL – Respondent
CRL.A NO. 1901 OF 2008 | Crl.L.P. NO.931 OF 2008 | CC NO.1133 OF 2000
For the Appellants/Petitioners: G.SREEKUMAR
For the Respondents: P.M.RAFIQ, P.VIJAYA BHANU (SR.), VIPIN NARAYAN, N.S.HASNA MOL
A power of attorney holder must have personal knowledge of the transaction to provide valid testimony in cases under the Negotiable Instruments Act.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Appeal against acquittal - Complainant alleged dishonor of cheque for insufficient funds - Acquittal by trial court challenged - Evidence of power of attorney holder insufficient to establish personal knowledge of transaction - Legal presumption under Section 139 not invoked - Appeal dismissed for lack of sufficient evidence. (Paras 2, 7, 8, 9)
(B) Power of Attorney - Competence to depose - Power of attorney holder can testify provided they have personal knowledge of the transaction - Lack of assertion in complaint regarding personal knowledge renders testimony insufficient. (Paras 8, 9)
Facts of the case:
The complainant alleged that the accused issued a cheque for Rs.21 lakhs which was dishonored due to insufficient funds. Notice was served but payment was not made, leading to prosecution under Section 138 of the N.I. Act.
Findings of Court:
The trial court's acquittal was based on insufficient evidence regarding the transaction, particularly the power of attorney holder's lack of personal knowledge. The appeal does not warrant interference.
Issues: Whether the complainant proved the transaction to invoke legal presumption under Section 139 of the N.I. Act.
Ratio Decidendi: A power of attorney holder can give evidence on behalf of the complainant if they possess personal knowledge of the transaction; absence of such assertion in the complaint leads to insufficient evidence.
Result: Appeal dismissed.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN TH MONDAY, THE 7 DAY OF JULY 2025 / 16TH ASHADHA, 1947 CRL.A NO. 1901 OF 2008 AGAINST THE ORDER/JUDGMENT DATED 05.08.2008 IN Crl.L.P. NO.931 OF 2008 OF THIS COURT ARISING OUT OF THE ORDER/JUDGMENT DATED 04.02.2003 IN CC NO.1133 OF 2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, CHALAKUDY APPELLANT:
SEBASTIAN CHALAKKUDY HOUSE, CHALAKKUDY, REP. BY HIS POWER OF ATTORNEY HOLDER, JOSEPH, S/O.
KUNJUVAREED,, KARAYAMPARAMBIL HOUSE, ALOOR VILLAGE, VELANCHIRA DESOM, THRISSUR DISTRICT.
BY ADV SHRI.G.SREEKUMAR (CHELUR)
RESPONDENTS:
1 MATHAI KANNAMKODAMVEETTIL, ELINJIPRA.P.O, CHOWKA, CHALAKKUDY.
2 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
SRI.P.M.RAFIQ SRI.P.VIJAYA BHANU (SR.)
SRI.VIPIN NARAYAN SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON 07.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been preferred by the complainant in C.C.No.1133 of 2000 on the file of the Judicial First Class Magistrate Court, Chalakkudy, challenging the judgment of acquittal rendered in the said case, dated 04.02.2003, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”). The parties in this appeal shall be referred to as the complainant and the accused hereafter.
2. The case of the complainant in brief is as follows;
The accused owed an amount of Rs.21 lakhs to the complainant. In discharge of the said liability, the accused issued a cheque drawn on the account maintained by him with the State Bank of Travancore, Chalakkudy branch. When the complainant presented the said cheque for collection, the same was returned dishonored, stating the reason ‘funds insufficient’. Thereafter, the complainant issued a notice to the accused intimating the factum of dishonor of the cheque and demanding the payment of the cheque amount. Though the said notice was duly served, the accused neither made the payment nor issued any reply. Hence, the accused is alleged to have committed an offence punishable under Section 138 of N.I. Act.
3. Before the trial court, the complainant was examined as PW1 and Exts. P1 to P8 were marked. On the side of the accused, no oral or documentary evidence was adduced.
4. After consideration of the oral and documentary evidence on record and after hearing both sides, the trial court by judgment dated 04.02.2003, found the accused not guilty of the offence punishable under Section 138 of N.I. Act, and accordingly acquitted him. Aggrieved by the said finding and order of acquittal, the complainant has preferred this appeal.
5. I heard Sreekumar G., the learned counsel appearing for the appellant, Sri.P.M.Rafiq, the learned counsel appearing for the 1st respondent and Smt.N.S. Hasna Mol, the learned Public Prosecutor.
6. The learned counsel for the appellant would submit that the trial court acquitted the accused in a hasty and unjustified manner without properly appreciating the facts and evidence brought on record. According to the counsel, the trial court wrongly entered into a finding that the power of attorney holder who tendered evidence in this case on behalf of the complainant did not have any personal knowledge regarding the transaction in this case, and his evidence is not sufficient to prove the alleged transaction. According to the counsel, as the execution of the cheque by the accused stands fully established and therefore, the complainant successfully laid the foundation for drawing the presumption under Section 139 of N.I. Act. However, the trial court acquitted the accused without taking note of the fact that the accused miserably failed to discharge the said presumption. Per contra, the learned counsel for the respondent submitted that the complainant miserably failed to prove his case. The counsel further urged that the power of attorney holder of the complaina
