S.138 NI Act | Power Of Attorney Holder's Incompetence To File Complaint No Ground To Assail Conviction At Revision Stage: Kerala High Court

Justice G. Girish referred to Section 465 of the Code of Criminal Procedure, which provides when the finding or sentence passed by a competent court is reversible by reason of error, omission or irregularity, and remarked:

“It is clear from the aforesaid provision of law that in the present case, the findings of conviction and sentence of the Trial Court, which were upheld by the Appellate Court, are not liable to be reversed in this revision proceedings unless it is shown that a failure of justice has, in fact, been occasioned due to the act of the learned Magistrate taking cognizance of the offence upon the complaint filed by the power of attorney holder of the complainant. Going by the provisions contained in sub Section (2) of Section 465 Cr.P.C, in determining whether a failure of justice has occasioned, this Court shall have regard to the fact whether the objection raised by the revision petitioner regarding the non-competence of the power of attorney holder to institute the complaint, was raised at an earlier stage in the proceedings.”

The revision petitioner before the Court had challenged the concurrent findings of his guilt by the trial court and the appellate court regarding the commission of the offence under Section 138 NI Act.

The revision petitioner contended that the entire criminal prosecution is not legally sustainable since the power of attorney holder of the complainant had not specifically pleaded in the complaint that she was having direct personal knowledge about the transactions between the complainant and the accused. It was stated that in the absence of such pleadings, the Magistrate ought not have taken cognizance of the offence and issued summons to the accused.

He relied on various decisions, including the Apex Court judgment in M/s.Naresh Potteries v. M/s.Aarti Industries and Another. However, the Court was of the opinion that this decision is not applicable in the present case since therein the Magistrate's order issuing process to the accused was challenged shortly after the Magistrate took the Power of Attorney holder's complaint into file whereas the challenge was made only at the stage of revision.

The Court also noticed that though the complaint was filed by the complainant's power of attorney holder, the complainant himself appeared before the trial court and gave evidence regarding the transactions alleged in the complaint.

It was further noted that the petitioner did not object to the Magistrate's order taking cognizance of the offence prior to the commencement of the trial. The Court also examined whether there was any failure of justice due to the Magistrate taking cognizance of the complaint.

“It is also pertinent to note that, the petitioner did not avail the remedy to challenge the order of the learned Magistrate taking cognizance of the complaint filed by the power of attorney holder, by taking recourse to appropriate procedures before this Court,” it added.

Thus, the Court was of the view that the findings of the trial court and the appellate court warrant no interference. With respect to the sentence, the Court felt it fit to modify the same from 6 months' imprisonment to imprisonment till the rising of the Court.

It did not modify the directions of the courts below regarding payment of compensation. Thus, it disposed of the plea.

Case No: Crl.Rev.Pet. No. 1038 of 2018

Case Title: Kannan v. M/s. Adisiva Enterprises and Anr.

Citation: 2026 LiveLaw (Ker) 274

Counsel for the petitioner: H. Ramanan

Counsel for the respondents: B. Mohanlal, Biju George, Anima M – Public Prosecutor

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