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2012 Supreme(Mad) 1266
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. Palanivelu, J.
S. Nagalakshmi rep by Power Agent K.N. Venkataraman
Versus
R. Nagalingam
Crl. A. No. 828 of 2004
Decided on : 9 March 2012
S. Kalyanaraman, for Appellant
B. Vasudevan, for Respondent
Headnote:NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138 - Legally enforceable debt - Consideration - Whether person is an earning member - The initial burden is upon the complainant to establish that there is a legally enforceable debt. When a defence is raised in this regard, it is to be established by the complainant that she has got necessary means for advancing the loan. But it is absent in this case. In so far as the realisation of cheque reportedly given by the complainant towards part payment of the money in one lakh, it is for the complainant to prove it. But there is no material to conclude that a cheque was issued by the appellant to the respondent towards part payment of money. It is reiterated that it is for the complainant to say the name of the bank on which the cheque was drawn and the date of the cheque and other particulars pertaining to the cheque. Then only it could be seen that the cheque was realised by the respondent. The necessary corollary is that there is no legally enforceable debt. (Para 18) - Presentation of complainant by P.A. holder - Norms - Held, (i). The complaint even if not signed by the power of attorney on behalf of the complainant but signed in his own name, is maintainable and not bad in law because it is more procedural than substantive; (ii). Though the General Power of Attorney at initial stage fails to produce the deed of power of attorney or the affidavit of the complainant in proof of execution of power of attorney, the same can be rectified by producing the same at a subsequent stage of the proceedings as and when the validity of the power of attorney is questioned by the accused and the court could then be called upon to decide the genuineness or the validity of the power of attorney; and (iii). It is not required to record the sworn affidavit of the complainant also on a future date to enable the court to exercise its discretion - Held, there was no legally enforceable debt - Judgment of lower court confirmed.
Result: Appeal dismissed.
1. Complainant is the appellant in this appeal. The appellant has come forward with this appeal challenging the judgment dated 5.3.2004 by the learned First Additional District Judge, Salem in C.A. No. 105 of 2003 acquitting the respondent/accused in respect of offence under Section 138 of Negotiable Instruments Act, reversing the judgment dated 21.7.2003 in C.C. No. 506 of 2001 on the file of the Judicial Magistrate No. II, Salem convicting the respondent/accused in respect of an offence under Section 138 of Negotiable Instruments Act and sentencing the accused to undergo one year rigorous imprisonment and also to pay a compensation of Rs. 1,00,000/- to the complainant, viz. the appellant.
2. The following are the contents of private complaint filed by the appellant under Section 138 of Negotiable Instruments Act:
The complainant is one Nagalakshmi and K.N. Venkataraman is her power of attorney holder. Before 29.6.2001, the accused obtained a loan of Rs. 1 lakh from the complainant Nagalakshmi for which he gave a cheque dated 29.6.2001 to the complainant. As requested by the accused, it was deposited in the Lakshmi Vilas Bank, Salem on 10.9.2001, but it was returned on 11.9.2011 under the reason “no sufficient funds”. Hence, she issued a notice through lawyer on 13.9.2001 but the accused refused to receive it. Hence, he is punishable under Section 138 of Negotiable Instruments Act.
3. The trial was taken up by the learned Judicial Magistrate No. 2, Salem and after analysing evidence on record, he found the accused guilty under Section 138 of Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for one year and also to pay a compensation of Rs. 1 lakh to the complainant under Section 357 Cr.P.C. The accused carried the matter in appeal in C.A. No. 105 of 2003 on the file of the First Additional Sessions Court, Salem in which on 5.3.2002, a judgment was passed allowing the appeal and acquitting the accused from the charge. Hence, this appeal has been preferred by the complainant.
4. Point for Consideration:
The point for consideration is “whether the respondent is liable to be punishable under Section 138 of Negotiable Instruments Act and is also liable to pay the compensation, as directed by the trial Court?.”
Point :
5. The power of attorney holder examined himself as P.W.1 and two other witnesses, the Bank Managers. PW-1 has stated in his cross examination that Nagalakshmi is studying Chartered Accountancy; that Nagalakshmi gave one part in cash and another part by cheque; that she is not a financier; that it is incorrect to suggest that since Nagalakshmi is a student, she has not advanced loan; that in order to wreck vengeance, the the cheque given by accused to somebody else for security purpose was misused and that the accused had given cheque to one Natarajan Financier and there was a dispute in the transaction and the cheque was misused by the complainant.
6. It is in the evidence of P.W.2 who is a Branch Manager in Salem Lakshmi Vilas Bank; that the Savings Bank Account of Nagalakshmi is maintained in their bank; that the Cheque in Exhibit P-2 was deposited for collection and the same was sent to Salem Erumapalayam Canara Bank for realisation, but it was dishonoured.
7. P.W.3 is working as Branch Manager in Salem Erumapalayam Canara Bank in which the accused is having his Savings Bank Account. He says that the bank received the Cheque Exhibit P-2 on 10.9.2001 which was for Rs. 1 lakh, but on that date, the balance available in the account of the accused was Rs. 2,951/- alone and hence the cheque was returned on the reason that there was “insufficient funds”. Exhibit P-6 is the statement of accounts pertaining to the accused. P.W.3 was again recalled and examined in cross. At that time, he was confronted with Exhibit P-6 and he would say that in the account of the accused in the year 2001 between July and October, there was no transaction of collection of cheque. The trial Court Judge has appreci
