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2009(2) Bankmann 234 (M.P.)
MADHYA PRADESH HIGH COURT
N.K. Mody, J.
Jagdish Chandra –Petitioner
versus
Hind Spinners –Respondent
Criminal Revision No. 692 of 2008
Decided on 24-10-2008
Counsel for the Parties:
For the Petitioner:Mr. Sunil Jain, Advocate.
For the Respondent:Mr. R.T. Thanewala, Advocate.
IMPORTANT POINT
A power of attorney holder has no locus standi to file a complaint under Section 142/138, N.I.A. in his own name.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Three cheques dishonoured Section 142—Separate complaints filed by Power of Attorney holder.
(ii) Criminal Procedure Code, 1973—Section 202—Attorney’s statement recorded—Section 204—Cognizance of offences taken—Trial Court sentenced accused to pay “double amounts of the cheques”.
(iii) Criminal Procedure Code, 1973—Section 374—Appeal against conviction—Section 386—Appellate Court set aside the impugned judgment but remanded case back to trial Court—Section 401—Revision petition against appellate judgment—Held: After framing of the charge, another authorised person was validly examined—The remand of cases back to the trial was illegal and nonest—Revision petition is allowed impugned judgment is set aside—Appeals are remanded back to the appellate Court for fresh decision on merits. (Paras 3 to 5, 9, 12 and 13)
N.K. Mody, J.—This order shall also govern the disposal of Cr. R. Nos.
693/08 and 694/08 filed by the petitioner and Cr. R. Nos. 945/08, 946/08 and 947/08 filed by the respondent. In all the Criminal Revisions parties are one and the same and question involved is also one and the same, therefore, all these petitions are being disposed of by one order.
2. All the Revision Petitions are against the judgment dated 16.6.2008 passed by Sessions Judge, Indore, whereby the judgment dated 20.11.2007 passed by Special Magistrate, Dewas whereby petitioner was convicted under Section 138 of the Negotiable Instruments Act (which shall be referred hereinafter as an Act) was set aside.
3. Short facts of the case are that the respondent filed a complaint under Section 138 of the Act alleging that the respondent company who is complainant herein is the sister concern of M/s. Hind Spinners Limited and is in business of production and sale of synthetic cloth. It was alleged that petitioner company had a business of production of synthetic cloth. It was alleged that for its business petitioner company has to purchase the synthetic yarn from the respondent company. It was alleged that the goods were purchased by the petitioner company from the respondent on credit and the cheque dated 18.3.2000 of Bank of India branch Bhilwada was issued in favour of respondent company. It was alleged that because of financial crises upon request of petitioner company the date of cheque which was initially 18.3.2000 was amended as 18.3.2002. It was alleged that respondent company presented the cheque for collection on 2.8.2002. It was alleged that the cheque which was presented by the respondent company was returned by Bank of India. Branch Dewas with a memo dated 17th August, 2002 whereby the respondent company was informed that the drawer has closed the account. It was alleged that after return of unpaid cheque respondent issued notice through registered post acknowledgement due and also simultaneously under certificate of posting. The notice was returned back to the respondent company on 13th September, 2002 with a postal remark of refusal. It was alleged that the petitioner company in reply to the notice informed the respondent company to grant some time for payment. It was alleged that since the cheque amount was not paid by the petitioner company in spite of demand notice, therefore, the petitioner company has committed an offence punishable under Section 138 of the Act. It was prayed that after the trial the petitioner company be convicted accordingly. In the petition it was also alleged that the complaint is being filed by Mr. Santosh Bharti. Account Assistant of the respondent company as vide resolution dated 14.5.1999 Santosh Bharti has been authorized by the Board of Directors and special power of attorney has been drawn in his favour. Since there were three cheques, therefore, three separate cases were filed by the respondent company towards each of the cheque.
4. After filing of the complaint under Section 200, Cr.P.C. statement of Santosh Bharti was recorded by the learned Trial Court under Section 202, Cr. P.C. and after taking cognizance the notices were issued to the petitioner company. After framing of charges respondent company examined Mr. B.S. Nigam as special power of attorney of the respondent company alleging that in compliance of resolution of respondent company passed by Board of Directors of respondent company on 29.6.2004. Shri B.S. Nigam has been authorized to appear and give statement and prosecute the case on behalf of respondent company. After recording of evidence learned Trial Court allowed the claim petition filed by respondent company holding that petitioner company has committed an offence punishable under Section 138 of the Act and is liable to pay double of the cheque amount. Being aggrieved by the judgment passed by the learned Trial Court an appeal was filed by the petitioner company. After hearing the parties, learned
