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2017 Supreme(Mad) 24
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, J.
J. Shamlal - Appellant
Vs.
G. Manoharan, Proprietor, M/s. S.D.M. & Co. - Respondent
Crl.A.No.14 of 2014
Decided On : 06-01-2017
For the Petitioner: M/s. L. Prabakaran.
For the Respondent: M/s. C.K.M. Appaji.
Headnote:
Criminal Produce Code, 1973 - Section 255(1) - Negotiable Instruments Act - Section 138 - Indian Contract Act, 1872 - Section 187 – Dishonored of cheque – Appeal against Acquittal - Learned Judicial Magistrate while passing the impugned Judgment in C.C. at paragraph 14, had, inter alia, observed that afore-stated financiers were not examined in case to prove debt amount to be paid by Respondent to the financiers, further said financiers details were not informed on behalf of Complainant and that for collecting debt, financiers had not given any authorisation and opined that under present circumstances, there arises suspicion on case of Complainant and by granting the benefit of doubt in favour of Respondent/Accused found him not guilty, since an offence under Section 138 of Negotiable Instruments Act was not proved beyond reasonable doubt and resultantly, acquitted him under Section 255(1) Cr.P.C - Questioning Validity, Legality and correctness of Judgment of Acquittal passed by trial Court, Appellant/Complainant (through his Power Agent) had filed present Appeal, mainly by taking a plea that Respondent/ Accused was acquitted by trial Court based only on presumptions, surmises and conjecture - Held, It is not possible for this Court o pronounce a Judgment and therefore opines that Remand of the Matter is just, fair and necessary, otherwise there would be a failure of Justice - Also that, this Court is of earnest opinion that evidence of Complainant is necessary to prosecute complaint (filed by P.W.1) in order to render a correct Judgment in case - If really, respective financiers are examined, then, they may throw light before trial Court whether Respondent/Accused owes a certain/specified-quantified amounts - Apart from that, pronotes executed in favour of concerned financiers can also be marked as Exhibits before trial Court - Court shall also permit Respondent/Accused to adduce rebuttal evidence when fresh witnesses/additional witnesses/documents are examined/marked in main case - Trial Court, in any event, shall dispose of main case with a free, open mind and that too in a dispassionate manner [of course, after providing necessary opportunities to both sides by adhering to principles of Natural Justice] within three months from date of receipt of copy of this Judgment - Criminal Appeal is allowed.
The Appellant/Complainant has focused the instant Criminal Appeal before this Court as against the Judgment dated 06.09.2013 in C.C.No.3331 of 2010 passed by the Learned Judicial Magistrate, (Fast Track Court No. IV), George Town, Chennai.
2. The Learned Judicial Magistrate (Fast Track Court No. IV), George Town, Chennai, while passing the impugned Judgment in C.C.No.3331 of 2010 dated 06.09.2013, at paragraph 14, had, inter alia, observed that'... the afore-stated financiers were not examined in the case to prove the debt amount to be paid by the Respondent to the financiers', further the said financiers details were not informed on behalf of the Complainant and that for collecting the debt, the financiers had not given any authorisation and opined that under the present circumstances, there arises suspicion on the case of the Complainant and by granting the benefit of doubt in favour of the Respondent/Accused found him not guilty, since an offence under Section 138 of the Negotiable Instruments Act was not proved beyond reasonable doubt and resultantly, acquitted him under Section 255(1) Cr.P.C.
3. Questioning the Validity, Legality and correctness of the Judgment of Acquittal dated 06.09.2013 passed by the trial Court, the Appellant/Complainant (through his Power Agent) had filed the present Appeal, mainly by taking a plea that the Respondent/ Accused was acquitted by the trial Court based only on 'presumptions, surmises and conjectures'. Moreover, it is represented on behalf of the Appellant that the trial Court had not taken into consideration the evidence of P.W.1 at the time of passing the impugned Judgment.
4. The Learned Counsel for the Appellant/Complainant urges before this Court that the Respondent/Accused had borrowed the Loan, which was arranged by the Appellant from various financiers and that the same was paid by way of cheques, which was encashed by the Respondent, which was not disputed at any point of time.
5. The Learned Counsel for the Appellant/Complainant takes a plea that the trial Court had failed to consider Ex.P2 (Confirmation Letter dated 27.04.2009 in favour of the Appellant/Complainant) and the said execution of the document was not disputed by the Respondent and this pivotal aspect was not borne in mind at the time of passing of the impugned Judgment.
6. According to the Learned Counsel for the Appellant, the Appellant/Complainant is the Holder of Ex.P2 - Confirmation Letter dated 27.04.2009 and indeed, as per Section 8 of the Negotiable Instruments Act, 1881, the Appellant is a 'Holder of Case Cheques'- Exs.P3 to P5 and therefore, is entitled to receive the sum due from the third parties concerned.
7. The Learned Counsel for the Appellant projects an argument that the trial Court had failed to take into account of the ingredients of Section 50 of the Negotiable Instruments Act which deals with 'Effect of Endorsement'. Further, it is represented on behalf of the Appellant that the Appellant is an Agent on behalf of the Financiers, who had advanced loan to the Respondent/Accused [based on the Confirmation Letter - Ex.P2], in and by which, an implied - authority is given to the Appellant. In short, the Respondent/Accused had executed Ex.P2 - Confirmation Letter as per Section 187 of the Indian Contract Act, 1872.
8. The Learned Counsel for the Appellant invites the attention of this Court that the Appellant/Complainant as 'Holder of Case Cheques' - Exs.P3 to P5 is entitled to collect the amount due in the instrument, but the trial Court had failed to appreciate this aspect, which has resulted in injustice.
9. The Learned Counsel for the Appellant brings it to the notice of this Court that the Respondent/Accused (D.W.1) had admitted in his evidence about the availing of loan and the same was credited in the account of the Respondent which reflected in the statement of account of the Respondent Bank (Ex.D1). But, these relevant aspects were not looked into by the trial Court in a proper and real pe
