AI Structured Summary
Not yet generated for this judgment
Judgment
P.R. Shivakumar, J.—The arguments advanced by Mr. K. Kalyanasundaram, learned Counsel for the Petitioner were heard. The grounds
of revision and the other materials placed before the Court in the form of typed-set of papers, which includes the copies of judgments of the Courts
below, were also perused.
The Petitioner herein was prosecuted by the first Respondent herein in S.T.C. No. 411 of 2008 on the file of the Judicial Magistrate No. I,
Coimbatore for an alleged offence under Sections 138 of the Negotiable Instruments Act based on the dishonour of two cheques issued by the
Petitioner in favour of G. Jayanthi, the first Respondent for a sum of Rs. 1,00,000/- and Rs. 1,29,500/- respectively. The first one was dated
10.07.2007 and the second one was dated 23.07.2007. When both the cheques were presented for collection, the first cheque was returned
unpaid with the endorsement that there was ""no sufficient fund"" in the account and the second cheque was returned with the endorsement ""account
closed"". The above said dishonoured cheques have been produced and marked as Exs.P3 and P5 respectively. Return Memo has been produced
and marked as Ex.P4.
Subsequently, within the period prescribed in the Negotiable Instruments Act, a notice intimating the dishonour of the cheques and calling upon
the Petitioner to make payment of the cheque amount was issued under Ex.P7. The service of the said notice is evidenced by Ex.P8
acknowledgment. Even after the receipt of the said statutory notice, the Petitioner failed and neglected either to issue a reply or to make payment
as demanded in the notice. Consequently, a complaint was filed by the first Respondent through her power attorney holder Soundararajan u/s 200
Code of Criminal Procedure
The said Soundararajan, who figured as the sole witness, was examined as PW1 and Exs.P1 to P8 were marked on the side of the complainant.
No documentary or oral evidence was adduced on the side of the Petitioner (accused). The learned Judicial Magistrate considered the evidence
and held the Petitioner/accused guilty of the offence u/s 138 of the Negotiable Instruments Act. Accordingly, he was convicted with one year
rigorous imprisonment and a fine of Rs. 5000/- with a default sentence to undergo simple imprisonment for one month in default of payment of fine.
The said judgment of conviction and the order of sentence were challenged by the Petitioner unsuccessfully before the learned Additional
District Judge, FTC No. II, Coimbatore in Crl.A. No. 109 of 2010. After re-appraising the evidence and considering the points raised by both
sides, the learned appellate Judge concurred with the trial Magistrate and dismissed the appeal confirming the conviction and sentence. Now the
Petitioner has come before this Court with the present criminal revision case questioning the propriety and legality of the judgment of the appellate
Court confirming the conviction and sentence.
Challenging the concurrent findings of the courts below regarding the guilt of the accused and also the sentence, the Petitioner has raised the
following contentions:
i) The cheques were not issued for a legally enforceable liability
ii) The complaint was not preferred by the payee. On the other hand, it was preferred by the Power of Attorney holder of the payee. The payee
did not enter the witness box and it was the Power of Attorney holder who entered the witness box and deposed against the Petitioner.
So far as the first contention of the Petitioner is concerned, it is the case of the Petitioner that there was a contract between the Petitioner and
the first Respondent, under which the first Respondent had undertaken to supply yarns for which purpose the Petitioner had issued the cheques in
question; that after the cheques were received, the first Respondent failed to supply yarns and that hence the cheques in question could not be
construed to be the cheques issued in discharge of a legally enforceable debt or a legally enforceable liability. This Court is at a loss to understand
as to the scope of a legally enforceable liability as conceived by the learned Counsel for the Petitioner. The contention of the learned Counsel for
the Petitioner is based on the assumption that a promise made against a promise by the other party, which is yet to be executed, cannot be legally
enforced, unless the other party has fulfilled the promise made by him. The said contention, according to the considered view of this Court, is
untenable and cannot be countenanced. Of course, it is true that under the explanation to Section 138 of the Negotiable Instruments Act, it has
been stated that a debt or a liability means a legally enforceable debt or other liability. Here the cheques are not intended to be issued in discharge
of a debt. On the other hand, even as per the Petitioner''s case, the cheques were issued in fulfillment of the promise made by the Petitioner
corresponding to the promise made by the first Respondent to supply yarns. Therefore, it cannot be said that the cheques were not issued for
legally enforceable liability. Under a contract, a party to the contract can enforce the liability of the other party even before fulfilling his part of the
promise. But what is required of such a party seeking to enforce the liability of the other party to the contract, is that he must be ready and willing
to perform his part of the contract. The explanation for debt or liability as legally enforceable debt or legally enforceable liability appended to
Section 138 of Negotiable Instruments Act shall mean that the debt in discharge of which the cheque has been issued should not have been barred
by limitation or the recovery of which has been barred any other provision of law. Similarly, a liability either contractual or other wise, should not
be one, the enforceability of which is either prohibited or disallowed by law. By no stretch of imagination the liability of a party to a contract can be
said to be unenforceable, simply because the obligations under the contract by the person seeking to enforce the obligation of the other party
remains executory. It is not the case of the Petitioner that the contract between the Petitioner and the first Respondent, in pursuance of which the
cheque was issued, was either illegal or opposed to public policy with the result that the same shall be unenforceable as per the provisions of the
Contract Act.
For all the reasons stated above, this Court is of the considered view that the first contention raised by the Petitioner deserves discountenance
and the Courts below have rightly rejected the said contention.
So far as the second contention is concerned, the learned counsel for the Petitioner relied on the judgment of the Hon''ble Supreme in Janki
Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, . The same is not relevant to the facts of the case on hand. Therein the
Hon''ble Supreme Court has held that no one can depute a person with a Power of Attorney to depose on his behalf, when he himself has to come
and depose. It has also made an observation to the effect that the Power of Attorney holder''s power to depose in place of the principal, extends
only to the depositions in respect of acts done by Power of Attorney holder in exercise of power granted by the instrument and that such act would
not include deposing in place of and instead of principal for acts done by the principal and not by the Power of Attorney holder.
In the present case the complaint itself was preferred through PW1, the Power of Attorney holder of the first Respondent u/s 200 Code of
Criminal Procedure The complainant''s sworn statement has to be recorded before taking cognizance of the case. Who is the complainant? There
is no specific definition in the code. The question of maintainability of a complaint for an offence u/s 138 of the Negotiable Instruments Act by the
Power of Attorney holder of the payee came to be considered by a Division Bench of this Court in K. Gopalakrishnan Vs. Karunakaran rep. by
the Power of Attorney Holder, . In the said judgment clear observations were made to the effect that the term ''complainant'' is not found defined in
Code of Criminal Procedure or the Power of Attorney Act and the term complainant means the person, who presents the complaint to the Court
or makes the oral complaint to the Court and that therefore, for taking cognizance of the offence u/s 200, the statement of the person, who
presents the complaint in writing or the person who makes the oral complaint shall be the proper course to be adopted.
The observation made by a learned single Judge of this Court (S.R. Singharavelu. J) in Y. Vijayalakshmi @ Rambha Vs. Manickam
Narayanan, Proprietor, Seventh Channel Communications rep. by its Power of Attorney Agent, to the effect that a complaint shall be signed by the
payee himself and not by the Power of Attorney holder; that an affidavit in proof of execution of power of attorney besides the production of the
deed of power of attorney shall be filed; that the sworn statement of the power of attorney holder can be recorded on the date of presentation of
the complaint; and that the sworn statement of the complainant (payee) also shall be recorded by the Judicial Magistrate on a future date has been
disproved by the above said judgment of the Division Bench of this Court wherein it has been clearly held that when the complaint is signed by the
Power of Attorney and it is presented by the Power of Attorney holder, for all practical purposes he shall be construed to be the complainant and
examination of such Power of Attorney holder u/s 200 to take cognizance of the complaint shall be proper. The said judgment of the Division
Bench was based on the observations of the Hon''ble Supreme Court in M.M.T.C. Ltd. and Another Vs. Medchl Chemicals and Pharma (P) Ltd.
and Another, . The Division Bench held that when such a complaint is given, it is not mandatory that the general Power of Attorney should be filed
initially and that even though the general Power of Attorney holder, at the initial stage, failed to produce the deed of power of Attorney or the
affidavit of the complainant in proof of execution of Power of Attorney, the same is only an irregularity, which could be rectified by producing the
same at a later stage of the proceedings as and when the validity of the Power of Attorney shall be questioned. The same will go to show that a
complaint preferred by the Power of Attorney holder cannot be termed incompetent and for that reason alone, the contention of the learned
Counsel for the Petitioner that the conviction recorded and the sentence imposed on the Petitioner are defective, cannot be accepted. The mere
fact that the principal, namely the payee had not enter the witness box to depose shall not be the ground on which the complaint shall be rejected
or the accused shall be acquitted. When it is proved that the cheque was issued in discharge of a debt or other liability, which is legally enforceable,
then the presumption u/s 139 of the Negotiable Instruments Act, will be drawn and it is for the accused to prove the contrary.
In this case, it is pertinent to note that the Petitioner not only failed to issue any reply to the statutory notice, but also failed to lead any evidence
to rebut the statutory presumption. It should also be noticed that the first cheque was returned with the endorsement that there was ""no sufficient
fund"" in the account. The second cheque was returned with endorsement ""account closed"". Both the endorsements indicate that there was no
sufficient funds for honouring the cheque and the amount sought to be paid out of the account exceeded the arrangement made by the Petitioner
with his banker. For all the reasons state above, both the contentions raised by the learned Counsel for the Petitioner deserves discountenance.
There is no defect or infirmity in the concurrent finding of the Courts below warranting any interference by this Court, either on the question of
conviction or on the question of sentence. Therefore, this Court comes to the conclusion that the criminal revision case deserves to be dismissed at
the stage of admission itself even without notice to the other side.
Accordingly, this petition is dismissed. Consequently, the connected miscellaneous petitions are closed.