A complainant under Section 138 of the NI Act must prove the execution of a cheque, relying on witnesses with direct knowledge of the transaction.

ORDER

The challenge in this revision petition is the conviction and sentence rendered against the revision petitioners under Section 138 of the NI Act.

2. The revision petitioners are accused Nos. 1 and 2 respectively, in C.C. No. 2766 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 the NI Act.

3. The complainant is a public limited company. It is engaged in the manufacture and sale of cement. The first accused, which is a partnership firm, of which the second accused is a partner, purchased cement from it. Thereafter, in order to discharge the said liability, the second accused, as a partner of the firm, issued Ext. P2 cheque dated 22.09.2001 for Rs. 12,98,631.60/-, drawn on Canara Bank, Kadavanthra Branch. When the cheque was presented for collection, it got dishonoured for the reason ‘funds 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 and after hearing both sides, found the accused guilty and convicted them under Section 138 of the NI Act. It sentenced the first accused to pay a fine of Rs. 5,000/- and the second accused to undergo simple imprisonment for a period of three months, under of the NI Act.

5. Accused Nos. 1 and 2 carried the matter in appeal by filing Criminal Appeal No. 361/2012 before the Additional Sessions Court-VIII, Ernakulam. The said court, by judgment dated 28.02.2017, dismissed the appeal.

6. Heard Sri. Varghese C. Kuriakose, the learned counsel for the revision petitioners. There is no representation for the second 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 on behalf of the complainant company by a Power of Attorney holder, who had no valid authorisation and no direct knowledge about the transactions and execution of cheque. He further contended that none of the witnesses examined from the side of the complainant had any direct knowledge regarding the transaction or the issuance of the cheque, and therefore, there is no substantive evidence to prove the execution of the cheque.

8. On an anxious consideration of the submissions made by the learned counsel for the revision petitioners, 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 company by a person named, Mr. Jayanthi Vijaya Bhaskara Sasthri, claiming to be the Power of Attorney holder of the complainant. But it is to be seen that the complainant has not produced the alleged Power of Attorney issued to Mr.Jayanthi Vijaya Bhaskara Sasthri, to prove that he is authorised by the complainant company to represent it, file the complaint, and prosecute the case before the trial court. Further, there is no specific averment in the complaint that he had witnessed the transactions as an agent of the company or that he has knowledge regarding the transactions and the execution of the cheque. It is very pertinent to note that the said Mr. Jayanthi Vijaya Bhaskara Sasthri has been examined from the side of the accused as DW2, and his evidence categorically shows that he is neither aware of the transactio