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2021 Supreme(Mad) 2071
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RMT. TEEKAA RAMAN, J.
M/s. Primus Analytics Limited – Appellant
Versus
M/s. ABL Bio Technologies Limited – Respondent
Crl. Appeal No. 461 of 2015
Decided On : 22-10-2021
Advocate Appeared:
For the Appellants : M. Mohammed Rafi, R. Joe Anand.
For the Respondent M. Anbalagan.
Headnote:
Criminal Procedure Code,1973 - Section 357(d) - Negotiable Instruments Act - Section 138 - Company - Memorandum of understanding - Ex.P2/memorandum of understanding between complainant’s company and accused, learned Magistrate has held that as agreed upon by parties under Ex.P2/memorandum of understanding, a sum of Rs. 46 lakhs was given by complainant to accused and as per terms, including annualized interest for period of 90 days, due payable by accused and accordingly, accused had issued a cheque, dated bearing No. 103562, for said amount to complainant - Though, cheque was dated it was presented to bank as could be seen from Ex.P4/Return Memo. Accordingly, learned Magistrate has held that in view of authorization given by Company to PW-1/complainant, complaint is maintainable and Ex.P3/cheque bearing No. 103562 for a sum was issued for pre-exiting legal liability and accordingly held that accused - Whether it is investment” as contended by accused or ‘a loan’ as contended by private complainant – Held, In Ex.D2/E-mail sent to the accused from complainant, it is specifically mentioned in Clause (2) in reply namely mail given by complainant is to help Court to move forward to consider investing in ABL as a whole - Lower Appellate Court has considered the same and has arrived at similar conclusion that in absence of anything reflecting on transaction as a loan, which is only an investment made therefor, for which it was agreed to pay Rs. 48,87,200/- [principle amount along with interest for 90 days and hence, amount deposited by the private complainant in escrow account is only an investment for company, for which by way of security a cheque in issue has been issued by accused - Criminal Appeal stands dismissed
JUDGMENT :
Prayer: This Criminal Appeal has been filed under Section 378(4) of Cr.P.C. against the order passed in C.A. No. 227 of 2012, on the file of the learned VI Additional Sessions Judge, Chennai, dated 08.01.2015.
1. The defeated private complainant is the appellant herein.
2. For the sake of convenience, the parties are referred as per the ranking before the Trial Court.
3. The complainant has filed a case in C.C. No. 3023 of 2020, before the Fast Track Court Egmore, Chennai, based on Ex.P3/cheque issued by the accused to the tune of Rs. 48,87,000/- Ex.P4/return memo and Ex.P5/debit advice and he had issued notice under Section 138 of the Negotiable Instruments Act and the same was received by the accused under Exs.P7 and P8/postal acknowledgment cards and the accused has also given a reply notice dated 04.04.2010 under Ex.P9, disputing the fact that the cheque was given only as security. After observing the formalities, the case was taken on file in C.C. No. 3023 of 2020.
4. After the trial, in view of Ex.P2/memorandum of understanding between the complainant’s company and the accused, the learned Magistrate has held that as agreed upon by the parties under Ex.P2/memorandum of understanding, a sum of Rs. 46 lakhs was given by the complainant to the accused and as per the terms, including annualized interest for the period of 90 days, the due payable by the accused is Rs. 48,87,300/- and accordingly, the accused had issued a cheque, dated 22.10.2009, bearing No. 103562, for the said amount to the complainant. Though, the cheque was dated 22.10.2009, it was presented to the bank on 20.02.2010 as could be seen from Ex.P4/Return Memo. Accordingly, the learned Magistrate has held that in view of the authorization given by the Company to PW-1/complainant, the complaint is maintainable and Ex.P3/cheque bearing No. 103562 for a sum of Rs. 48,87,000/- was issued for pre-exiting legal liability and accordingly held that the accused had committed offence under Section 138 of the Negotiable Instruments Act and sentenced them as:
(i) The second accused is sentenced to undergo one year simple imprisonment and to pay a sum of Rs. 48,87,000/- as compensation under Section 357(d) of Cr.P.C. within a period of one month and in default to undergo three months simple imprisonment.
(ii) First accused being a Company represented by the second respondent, no separate sentence was imposed on the first accused.
5. Aggrieved against the said order passed by the learned Magistrate, the respondents had preferred C.A. No. 227 of 2012, before the VI Additional District Sessions Judge, Chennai, in which the learned Judge has held that the cheque was given only as a security to ensure the payment and further held that the authorization given to PW-1 is not with reference to cheque case and accordingly allowed the appeal and set aside the conviction and sentence passed by the Trial Court. Hence, the present Criminal Appeal has been preferred by the complainant.
6. Heard both the learned counsels and perused the materials placed on record.
7. The learned counsel for the complainant would contend that as per the terms of Ex.P2/Memorandum of Understanding is clear that the amount has been taken for the purpose of running the business by the accused. The terms and conditions envisages for the payment of Rs. 48,87,000/- which is inclusive of both principal and interest as contained in the terms of Ex.P2/memorandum of understanding and furthermore in the authorization, there is a specific word of authorizing PW-1/complainant to initiate the Criminal Proceedings and the word criminal proceedings in the authorization encloses the proceedings under Section 138 of the Negotiable Instruments Act.
8. Mr. M. Anbalagan, learned counsel for the accused would contend that as per Ex.P2/Memorandum of Understanding entered between the complainant and the accused-Company on 22.07.2009, it is only an investment and not a borrowal of loan as contended before the Trial Court. Further
