Haryana State Co-operative Supply and Marketing Federation Ltd. vs Shree Olive Fabrics and Another

A.C. Arumugaperumal Adityan, J.—The complainant in STC No. 1378/95 and C.C. Nos. 1410, 1414, 1421, 1424, 1425,1426 and 1427

of 1995 on the 1''ile of the Judicial Magistrate No. V, Coimbatore, is the appellant in all the above appeals. The complainant has preferred the

private complaint in all the above cases u/s 200 of Cr.P.C, for an offence u/s 138 of the Negotiable Instruments Act against the accused.

Admittedly in the business transaction in connection with cotton bales a sum of Rs. 26,99,995/- is due from the respondents in STC No.

1378/95 and C.C. Nos. 1414 and 1421/95 and the respondents in C.C. Nos. 1410, 1424 to 1427 of 1995 owes a sum of Rs. 29,18,241/- to

the complainant.

On appearance of the accused, the learned trial Judge has furnished copies u/s 207 of Cr.P.C., and when the charges were framed and

questioned the accused pleaded not guilty. P.W. 1 and P.W.2 were examined and Ex. P. 1 to Ex. P.7 were marked on the side of the complainant

in C.C. Nos. 1421 and 1414/95 and STC No. 1378/95. P.W. 1 to P.W. 3 were examined and Ex. P. 1 to Ex. P. 10 were marked on the side of

the complainant in C.C. No. 1410/1995. P.W. 1 to P.W.3 were examined and Ex. P. 1 to Ex. P. 11 were marked on the side of the complainant

in C.C. Nos. 1424 to 1427 of 1995.

When incriminating circumstances were put to the accused u/s 313 of Cr.P.C., the accused would deny their complicity with the crime in all the

above cases. In STC No. 1378/95 and C.C. Nos. 1414 and 1421 of 1995 A2 Ravi examined himself as D. W. 1 and has marked Ex. D. 1 to

Ex. D. 10 in al 1 the above said three cases. In C.C. No. 1410/95 Ex. D. 1 and Ex. D.2 were marked. In C.C. No. 1427/ 95 Ex. D.1 to Ex. D.2

were marked. In C.C. Nos. 1424 to 1426/95 Ex. D.1 to Ex. D.3 were marked. After going through the available evidence both oral and

documentary meticulously, the learned trial Judge has come to the conclusion that an offence u/s 138 of the Negotiable Instruments. Act is not

attracted against the accused to warrant conviction and accordingly dismissed all the above said STC and CC cases, which necessitated the

complainant to prefer these appeals.

Now the point for determination in this appeal is whether the judgment of the Trial Court is perverse in nature or full of manifest error to warrant

any interference from this Court?

Heard Mr. N. Ishtiaq Ahmed appearing for the appellant and Mr. V. Sairam appearing for the respondent in Crl. A. Nos. 668,670 and

671/2001 and considered their respective submissions.

The Point:

The first ground on which the learned trial Judge has dismissed the complaint is that the power of attorney holder for P.W. 1 in all the above

cases viz. Devendra Kumar is not competent to represent P.W. 1 and that the deed of power of attorney, on which reliance is placed by P.W. 1

Devendra Kumar, is that Ex. P. 10-power of attorney in STC No. 1378/95 and CC. Nos. 1414 and 1421 of 1995 and Ex. P.9 in CC. Nos.

1410, 1424, 1425, 1426, 1427 of 1995 are executed by the Managing Director of M/s. Haryana State Co-operative Supply and Marketing

Federation Ltd., and he is not competent to execute general power of attorney in favour of Devendra Kumar, P.W. 1, in all the cases. At request

by this Court Mr. N. Ishtiaq Ahmed has produced a judgment of this Court in Crl. A. Nos. 348 and 410 of 2001 dated 18.6.2001, wherein this

Court has held in a similar situation, the complaint filed by the same complainant through power of attorney holder Devendra Kumar against

different accused, the power of attorney deed produced by Devendra Kumar in those cases was rejected by this Court on the ground that the

Managing Director is not competent to execute the power of attorney under Rule 27(xvii) of the Bye-laws of the complainant''s company, unless

the Board of Directors by way of resolution authorised the Managing Director relegate to some one his power conferred under Rule 27(xvii) of the

Bye-laws, the power of attorney holder Devendra Kumar is not competent to file the complaint on behalf of the complainant viz. M/s. Haryana

State Co-operative Supply and Marketing Federation Ltd., Coimbatore. The Bye-laws of the complainant was filed as Ex. D.l. But here, in these

cases, the Bye-laws of the, complainant was not produced. Even then it is admitted that the complainant in CA. Nos. 348 and 410 of 2001 is the

complainant in all the above cases. So I am of the view that since Board of Directors have not authorised the Managing Director who has executed

the power of attorney in favour of Devendra Kumar, on which the reliance is placed by Devendra Kumar is not competent to file the complaint on

behalf of the complainant. The above said power of attorney deed in each of the above said STC and CC cases will not empower him to file the

complaints on behalf of M/s. Haryana State Co-operative Supply and Marketing Federation Ltd., Coimbatore.

7.1 Next ground on which the learned trial Judge has dismissed the complaints is that on the date of drawal of the respective cheques there was no

subsisting liability on the accused in these cases to discharge the same. By way of rebuttal evidence the accused produced Ex. D.1 and Ex. D.2 in

C.C. Nos. 1410 and 1427 of 1995 and Ex. D. 1 to Ex. D.3 in C.C. Nos. 1424 to 1426 of 1995 and Ex. D. 1 to Ex. D.10 in STC No. 1378/95

and C.C. Nos. 1414 and 1421 of 1995, to show that the amount due to the complainant in the business transaction entered into between the

accused and the complainant were subsequently discharged by the accused in these cases and the impugned post-dated cheques were given only

as a security and not for discharging any subsisting liability. I do not find any reasons to interfere with the findings of the learned trial Judge, which is

neither illegal nor infirm to warrant any interference from this Court. Point is answered accordingly.

In fine the appeals are dismissed confirming the judgment of the Trial Court in STC No. 1378/95 and C.C. Nos. 1410, 1414, 1421, 1424,

1425, 1426 and 1427 of 1995 respectively on the file of the Judicial Magistrate No. V, Coimbatore.