AI Structured Summary
Not yet generated for this judgment
Judgment
V. Jajgannathan
This petition is disposed of finally after hearing learned Counsel for the parties.
Petitioner were the accused in the trial court in respect of a complaint filed by the Respondent u/s 138 of N.I. Act. The case of Respondent complainant was that the Petitioners being the husband and wife had approached the complainant for financial assistance and barrowed loans on various dates and in respect of two such loan transactions, the accused had issued two cheques, one for Rs. 20 lakhs and another for Rs. 21,72,665/- drawn on ING Vysya Bank Ltd., Jayanegar Branch, Bangalore, and the said cheques on being presented were returned with an endorsement ''insufficient funds''. Thereafter, after issuing notice to the accused, the Respondent approached the trial curt by way of this complaint u/s 200 of Code of Criminal Procedure.
The trial court considered the case of the parties and took note of the evidence placed before it and ultimately, convicted the Petitioners u/s 138 of N.I. Act and ordered there to pay Rs. 60 lakhs as fine and in default, to undergo S.I. for one year. The said judgment was called in question before the lower appellate court by the Petitioners and appeal was dismissed
Learned Counsel Sri. S.K. Venkata Reddy for the Petitioners submitted that there has been number of transaction between the parties, in as much as, various amounts were taken by the Petitioners on various dates and the Petitioners have also made payment to the Respondent both by way of cheques as well as cash and referring to the application i.e., filled u/s 482 R/w 397 R/w 401 of Code of Criminal Procedure submission made is that, in all the Petitioners have paid Rs. 46,37,360/- through various cheques mentioned at Para 5.1 of the application and cash payment was also made as mentioned in Para 5.2 of the application amounting to Rs. 1,50,00,000/-. Therefore, it is contended that the Petitioners have made all the payments, but the cheques, which are the basis for the present complaint, were blanc cheques and misused by the Respondent. More over, learned Counsel for the Petitioners in the trail court did not present the documents that were sought to be produced by the Petitioners and as such, the matter be remanded to the trial court for fresh consideration. That apart, it is submitted that there are three more cases pending in the trial court between the very same parties and some of them are at the stage of evidence and a suit is also filed by the Respondent in O.S. No. 6783/07 for recovery of money. It is therefore contended that when the Respondent does not say in the present complaint anything about the payments made by the Petitioners, the trial court as well as the lower appellate court could not have allowed the complaint of the Respondent and therefore, in the interest of justice, the matter be remanded.
On the other hand, submission of Sri. H.S. Dwarakanath, learned Counsel for the Respondent is that, the mistake of the Counsel in the trial court cannot be a ground for the Petitioners to seek remand of the matter and in this connection, learned Counsel referred to the decisions reported in Salil Dutta Vs. T.M. and M.C. Private Ltd., to contend that the deficiency on the part of the counsel in the trial court cannot be a ground to consider the present petition for remand. He also relied on another decision of the Delhi High Court reported in Sukhdev Raj Arora (Decd.) thr. LR. Vs. M.K. Bhargava to contend that no remedy can be asked when opportunity to make to make good is not availed. It is also submitted that an advocate is an agent of the party and the party will be bound by the actions of his agent.
Apart form the aforesaid decisions, learned Counsel for the Respondent also argued that the documents produced by the Respondent before the trial court also included the mortgage deed and other documents which were marked as Exs. P15 and P16 and Ex. P12 is the mortgage deed and it is difficult to accept the contention of the Petitioners that they had signed on the blank mortgage deed. Therefore, the judgmente of the courts below requires no interference and the application filed at this stage also cannot be entertained.
Having thus heard both sides, it is clear from the application filed by the Petitioners that between the Petitioners on the one hand and the Respondent, there have been number of icon transactions and several payments were also made by the Petitioners. The Respondent has also filed three more cases alleging an offience punishable u/s 138 of N.I. Act against the Petitioners and they are pending before the concerned criminal court in C.C. Nos. 31741/05, 24044/07 and 25228/07 and apart from that the Petitioners have also stated that the suit is also pending in O.S. Nos. 6783/07, 5754/07 and 5733/07.
It is the specific case of the Petitioners that all the payments have been made by them and the two cheques in question pertain to the present complaint were the blank cheques misused by the Respondent. No doubt, as has been submitted by learned Counsel for the Respondent, the advocates in an agent of the party and the party is bound by the actions of his agent, however, the decisions referred to by learned Counsel for the Respondent are not applicable to the present case, in as much as, in the first case referred to, which is reported in Salil Dutta Vs. T.M. and M.C. Private Ltd., , the Apex Court found on facts that the advocates for the Defendants had advised the Defendants that they need not appear before the Court until I.A. filed by them are disposed of. The Apex Court therefore observed that no advocate worth his salt would give such an advice to his client.
In other case of the Delhi High Court referred to by learned Counsel for the Respondent, it was found on facts that the contention of the applicants-tenants that the tenants were not aware of the order passed u/s 15(1) of the Delhi Rent Control Act, 1958 cannot be believed and it was found to be a false, because the matter was listed after 11th of November, 2005 for evidence and the Apex Court also referred to the dates on which the case was posted and the copy of the evidence by way of an affidavit also has been supplied and under these circumstances, the apex Court held that it is inconceivable that the Counsel for the tenant did not know that the case was being listed in the category of evidence of the Respondent-landlord and very fact that the listing of the cases for Counsel that the order u/s 15(1) of the Act had been made.
We are not dealing with the case of the aforesaid nature and therefore, the said ruling also is not applicable to the case on hand.
In view of the transactions the parties are having which is also admitted in the objections filed by the Respondent and the Petitioners now contending before this Court that they have made payments through cheques as well as by way of cash and as there are three more cases pending between the very same parties in the trial court, in my view, in order to meet the ends of justice, it is just and necessary to remand the case to the trial court, so that both the parties will have an opportunity to place before the court the evidence with regard to actual payment made by the Petitioners and actual amount received by the Respondent and thereafter, the court can proceed with the matter in accordance with law. At the same time, as the matter in now being reconciled at this length of time, cost will have to be imposed upon the Petitioners.
Having regard to the facts and circumstances of this case, Cost of Rs. 10,000/- is imposed, which shall be paid to the Respondent before the trial court on the date to appear before the trial court on 05.09.2011.
For the above said reasons, the judgment of the trial court and that of the lower appellate court are set aside and the matter is remanded to the trial court for disposal in accordance with law within a period of three months from the date of appearance of the parties before the trial court. It is also made clear that the observations made herein above and the contentions put forward shall not influence the trial curt in arriving at a decision on merits. Trial court shall also consider the request of the Petitioners for cross-examination of P.W. 1.