High Court holds non-production of power of attorney not fatal where board resolution authorised prosecution; revision petition dismissed

A bench comprising Justice G. Girish of the Kerala High Court heard a criminal revision petition by an accused challenging his conviction under Section 138 of the Negotiable Instruments Act. The petition arose from a conviction and sentence imposed by the Judicial First Class Magistrate, Nadapuram, which was affirmed by the Additional District Court II, Kozhikode, and impugned before the High Court in Crl.Rev.Pet. No.85 of 2018.

The Court dismissed the revision petition and upheld the concurrent findings of the trial and appellate courts that the accused had issued the cheque in question and was guilty under Section 138 NI Act. The High Court held that the non-production of a power of attorney was not fatal where the complainant company had produced an extract of the board resolution authorising the signatory to institute the complaint. The Court relied on Supreme Court precedent to conclude that a company “can be represented by an employee or even a non-employee authorised and empowered to represent the company either by a resolution or by a power of attorney.” The Court, in its reasoning, observed: “16. While this Court was primarily concerned with the issue relating to the exemption available against examining a public servant in view of Section 200(a) of the CrPC, this Court nevertheless clarified that the requirement of Section 142 of the NI Act that the payee should be the complainant would be met if the complaint is in the name of the payee. Where the payee is a company, this Court observed that the complaint should necessarily be filed in the name of the company, if the company is the complainant. In such cases, this Court held that a company can be represented by an employee or even a non-employee authorised and empowered to represent the company either by a resolution or by a power of attorney. As a consequence of the aforesaid discussion, this Court concluded that for the purposes of Section 142 of the NI Act, the company will be the complainant and for the purposes of Section 200 of the CrPC, its employee who represents the company, will be the de facto complainant while the company will remain the de jure complainant, regardless of any change in the de facto complainant.” The Court further noted that “there is absolutely no scope for interfering with the concurrent findings of the courts below.”

Background

The accused, Hameed K., stood convicted in S.T. No.1736 of 2014 for an offence under Section 138 NI Act. The trial court sentenced him to imprisonment till the rising of the court and imposed a fine of Rs.2,59,900, with a default clause of six months’ simple imprisonment; the appellate court confirmed conviction but reduced the default sentence to three months. The complaint had been instituted by a representative of Sree Gokulam Chits Finance Company Pvt. Ltd., and the complainant produced eleven documents (Exts P1–P11) including Ext P7, an extract of a board resolution authorising the signatory to act for the company. The power of attorney itself was not produced.

Before the High Court, the petitioner, represented through an Amicus Curiae appointed by the Court, argued that the prosecution was not maintainable because the power of attorney mentioned in the complaint was not produced and thus the signatory lacked authority. The respondent company contended that the board resolution on record sufficed to establish authority. The High Court examined Supreme Court decisions including Naresh Potteries v. M/s Aarti Industries and National Small Industries Corporation Ltd. v. State (NCT of Delhi), which had held that a company could be represented by an employee or a non-employee authorised by resolution or power of attorney for the purposes of Section 142 NI Act and related CrPC provisions. The Court also reiterated settled principles limiting revisional interference, citing the Supreme Court in Sanjabij Tari v. Kishore S Borcar that a High Court should not upset concurrent factual findings in the absence of perversity.

Applying these principles, the High Court held that the signatory was competent to represent the complainant and that the concurrent findings on execution and issuance of the cheque were not perverse. Consequently, the revision petition was dismissed. The Court recorded its appreciation for the assistance of the Amicus Curiae appointed in the matter.

Case No.: Crl.Rev.Pet. No.85 of 2018 (2026:KER:13894) Case Title: Hameed K. v. State of Kerala & Ors. Appearances: For the Petitioner(s): Advs. Sri M.G. Sreejith; Shri Bobby Mathew Koothattukulam For the Respondent(s): Adv. Sri K. Vidyasagar for R2; Sri. Sanal P. Raj, Public Prosecutor (for State); Sri Jinu P. Binu (Amicus Curiae)