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2007 Supreme(Mad) 2396
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
M/s. Haryana State Co-operative Supply and Marketing Federation Ltd.
Versus
Shree Olive Fabrice, A partnership Firms, rep. by its Partner A. Ravi & Others
Crl.A.Nos.668 to 675 of 2001
Decided On : 02-08-2007
For the Appellant:N. Ishtiaq Ahmed, Advocate. For the Respondents:V. Sairam, Advocate.
Competence of the power of attorney holder and existence of subsisting liability are crucial for establishing an offence under Section 138 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Dismissal of complaints under Section 138 - [STC.No.1378/95 & C.C.Nos.1410, 1414, 1421, 1424, 1425, 1426 & 1427 of 1995] - [Section 138 of the Negotiable Instruments Act] - The court dismissed the complaints under Section 138 of the Negotiable Instruments Act, citing lack of competence of the power of attorney holder and absence of subsisting liability on the accused at the time of drawal of the cheques.
Fact of the Case:
The complainant filed private complaints under Section 138 of the Negotiable Instruments Act against the accused for non-payment of due amounts in business transactions. The trial judge dismissed the complaints, leading to the appeals.
Finding of the Court:
The court found that the power of attorney holder was not competent to represent the complainant and that there was no subsisting liability on the accused at the time of drawal of the cheques. The court confirmed the judgment of the trial court and dismissed the appeals.
Issues: Competence of the power of attorney holder and existence of subsisting liability on the accused.
Ratio Decidendi: The power of attorney holder must be competent to represent the complainant, and there must be a subsisting liability on the accused at the time of drawal of the cheques for an offence under Section 138 of the Negotiable Instruments Act to be attracted.
Final Decision: The appeals were dismissed, confirming the judgment of the trial court.
The complainant in STC.No.1378/95 & C.C.Nos.1410, 1414, 1421, 1424, 1425, 1426 & 1427 of 1995 on the file 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 under Section 200 of Cr.P.C., for an offence under Section 138 of the Negotiable Instruments Act against the accused.
2. 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 & C.C.No.1414 & 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.
3. On appearance of the accused, the learned trial judge has furnished copies under Section 207 of Cr.P.C., and when the charges were framed and questioned the accused pleaded not guilty. P.W.1 & P.W.2 were examined and Ex.P.1 to Ex.P.7 were marked on the side of the complainant in C.C.No.1421 & 1414/95 & 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.No.1424 to 1427 of 1995.
4. When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused would deny their complicity with the crime in all the above cases. In STC.No.1378/95 & C.C.Nos.1414 & 1421 of 1995 A2-Ravi examined himself as D.W.1 and has marked Ex.D.1 to Ex.D.10 in all 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.No.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 under Section 138 of the Negotiable Instruments Act is not attracted against the accused to warrant conviction and accordingly dismissed all the above said STC & CC cases, which necessitated the complainant to prefer these appeals.
5. 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?
6. Heard Mr.N.Ishtiaq Ahmed appearing for the appellant and Mr.V.Sairam appearing for the respondent in Crl.A.No.668, 670 & 671/2001 and considered their respective submissions.
7. The Point:- 7(a) 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 & C.C.Nos.1414 & 1421 of 1995 and Ex.P.9 in C.C.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.No.348 & 410 of 2001 dated 16. 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-law of the complainants company, unless the Board of Directors by way of resolution authorised the Managing Director to 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-oper
