Case Note & Summary
The case involves multiple criminal revision petitions filed by M/s. Shanthi Fortune (India) Limited and its Managing Director, Krishnamurthy, against a common judgment dated 16.1.2014 passed by the III Additional District and Sessions Judge, Dakshina Kannada, Mangalore, in Criminal Appeals No.150/2013 to 167/2013, which confirmed the conviction and sentence dated 1.4.2013 passed by the JMFC (V Court), D.K., Mangalore, in C.C.No.660/2009 to C.C.No.661/2009 and other connected cases. The petitioners were convicted under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques issued to the respondent, M/s. Mukka Sea Foods Industries. The petitioners challenged the conviction on the ground that the complainant did not examine himself or his power of attorney holder, and the power of attorney was not proved to be duly executed. The High Court observed that the complainant, a partnership firm, was represented by its partner K. Mohammed Althaf, but neither the partner nor any power of attorney holder was examined. The power of attorney relied upon was not proved. The court held that the complaint was not maintainable as the complainant failed to prove the due execution of the power of attorney. Consequently, the court allowed the revision petitions, set aside the conviction and sentence, and acquitted the petitioners.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Maintainability of Complaint - Power of Attorney - The complainant must either examine himself or his duly authorized power of attorney holder to prove the execution of the power of attorney and the transaction. Failure to do so renders the complaint not maintainable. The court held that the conviction was unsustainable as the complainant did not step into the witness box and the power of attorney holder was not examined, and the power of attorney was not proved. (Paras 1-10) B) Criminal Procedure Code - Revision - Sections 397, 401 - Scope - The High Court in revision can interfere with findings of fact if the lower courts have acted illegally or with material irregularity. The court found that the courts below erred in convicting the accused without proper proof of the complaint. (Paras 1-10)
Issue of Consideration
Whether the conviction of the petitioners under Section 138 of the Negotiable Instruments Act, 1881 is sustainable when the complainant did not examine himself or his power of attorney holder, and the power of attorney was not proved to be duly executed?
Final Decision
The High Court allowed the criminal revision petitions, set aside the conviction and sentence dated 16.1.2014 passed by the III Additional District and Sessions Judge, Dakshina Kannada, Mangalore, in Crl.A.No.150/2013 to 167/2013 and the order dated 1.4.2013 passed by the JMFC (V Court), D.K., Mangalore, in C.C.No.660/2009 to C.C.No.661/2009 and other connected cases, and acquitted the petitioners.
Law Points
- Power of attorney holder must be duly authorized and examined to prove the complaint
- Non-examination of complainant or authorized agent renders complaint not maintainable
- Section 138 Negotiable Instruments Act
- 1881 requires strict proof of due execution of power of attorney
