A complainant must prove the execution of a cheque by direct knowledge or witness testimony; reliance solely on records fails to establish the burden of proof.

ORDER :

P.V. BALAKRISHNAN, J.

1. Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioners under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'NI Act' for short).

2. The revision petitioners are the accused Nos.1 to 3 respectively, in CC No.2764 of 2001 on the files of the Judicial First Class Magistrate Court -II, Ernakulam. They stood trial before that court for committing an offence punishable under Section 138 of NI Act.

3. The complainant is a company engaged in the manufacturing and sale of cement. The 1^st accused is a private limited company, and the 2^nd and 3^rd accused are the directors of the 1^st accused. The 1^st accused purchased cement from the complainant company and, in discharge of the said liability, issued Ext.P2 cheque dated 21.08.2001 for Rs.8,71,695/- drawn on Canara Bank, Kadavanthra Branch. But when the cheque was presented for collection, it got dishonored for the reason that funds are insufficient. The statutory notice issued also did not evoke any response. Hence, the complainant approached the trial court by filing the afore complaint.

4. The trial court, on an appreciation of the evidence on record, found the accused guilty and convicted them under Section 138 of the NI Act. It sentenced the 1^st accused to pay a fine of Rs.5,000/- and the 2^nd and 3^rd accused to undergo simple imprisonment for a period of three months under Section 138 of the NI Act. It also ordered the 2^nd and 3^rd accused to pay a sum of Rs.8,00,000/- each to the complainant as compensation under Section 357(3) Cr.P.C., with a default clause.

5. The accused carried the matter in appeal by filing Crl.Appl.No.360 of 2012 before the Additional Sessions Court- VIII, Ernakulam. The said court by judgment dated 28.02.2017, dismissed the appeal.

6. Heard, Adv. Varghese C. Kuriakose, the learned counsel for the revision petitioners. There is no representation for the 2^nd respondent. Perused the records.

7. The learned counsel for the revision petitioners submitted that both the trial court and the appellate court did not consider the materials on record, including the evidence adduced, in a proper perspective and has arrived at a wrong conclusion of guilt against the revision petitioners. He submitted that the complaint was filed through a power of attorney holder, and the power of attorney has not been produced before the trial court. He also submitted that the person who filed the complaint had no direct knowledge regarding the transactions and execution of the cheque. He contended that none of the witnesses examined from the side of the complainant had any direct knowledge regarding the transactions or the issuance of the cheque, and therefore, even the initial onus cast on the complainant, to prove the execution of the cheque has not been discharged.

8. On an anxious consideration of the submissions made by the learned counsel for the revision petitioners, and the materials on record, I am of the view that there is some merit in it. It is to be seen that the complaint has been filed on behalf of the complainant by a person named Mr. Jayanthi Vijaya Bhaskara Sasthri, claiming to be the attorney holder of the complainant. But it is to be taken note that there is no specific averment in the complaint that he had witnessed the transactions as an agent of the company or that he is having knowledge regarding the transactions and the execution of the cheque. It is also to be taken note that the complainant has not produced the power of attorney authorising Mr. Jayanthi Vijaya Bhaskara Sasthri, to file the complaint, and prosecute it before the trial court. Further, it is pertinent to note that the said Mr. Jayanthi Vijaya Bhaskara Sasthri