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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. HEMALATHA, J.
K. Vellachamy Mahendran - Appellant
Versus
Vimala - Respondent
Crl.R.C.Nos. 1184, 1185 & 1186 of 2023 & Crl.M.P.Nos. 9221, 9222 & 9224 of 2023
Decided On : 03-08-2023
NI Act - Power of Attorney - Sections 138, 397(1), 401 of Cr.P.C - [138, 397(1), 401] - The court discussed the legal provisions of Section 138 of the Negotiable Instruments Act and the relevance of Power of Attorney in deposing evidence. The court also referred to Section 120 of the Indian Evidence Act and relevant case laws to establish the competence of a husband or wife as a witness in criminal proceedings. The court's decision was influenced by the interpretation of these legal provisions and their application to the facts of the case.
Fact of the Case:
The respondent/complainant filed a private complaint against the petitioner/accused for dishonoring cheques issued under the Negotiable Instruments Act. The trial court found the accused guilty and sentenced him, which was confirmed by the appellate court.
Finding of the Court:
The court found that the respondent/complainant had established a legally enforceable debt, and the accused failed to rebut the presumption under Sections 118 and 139 of the NI Act. The court also upheld the competence of the husband to depose evidence on behalf of the complainant through a Power of Attorney.
Issues: The main issue was the competence of the Power of Attorney holder to depose evidence and the establishment of a legally enforceable debt by the respondent/complainant.
Ratio Decidendi: The court held that the husband, as a competent witness, could depose evidence on behalf of the complainant through a Power of Attorney. The court also emphasized the importance of establishing a legally enforceable debt and the accused's failure to rebut the presumption under the NI Act.
Final Decision: The court dismissed the criminal revision cases and confirmed the judgments of the lower courts, upholding the conviction and sentence of the accused.
JUDGMENT
(Prayer in Crl.R.C.No.1184 of 2023:
This Criminal Revision Case is filed under Sections 397(1) & 401 of Cr.P.C. praying to call for records and set aside the judgment dated 22.08.2022 passed in C.A.No.201 of 2020 on the file of the III Additional District & Sessions Judge, Coimbatore confirming the order of conviction & sentence passed in judgment dated 21.10.2020 in C.C.No.256 of 2018 on the file of the Judicial Magistrate, Fast Track Court No.1 @ Magisterial Level, Coimbatore and acquit him.
Prayer in Crl.R.C.No.1185 of 2023:
This Criminal Revision Case is filed under Sections 397(1) & 401 of Cr.P.C. praying to call for records and set aside the judgment dated 22.08.2022 passed in C.A.No.200 of 2020 on the file of the III Additional District & Sessions Judge, Coimbatore confirming the order of conviction & sentence passed vide judgment dated 21.10.2020 in C.C.No.255 of 2018 on the file of the Judicial Magistrate, Fast Track Court No.1 @ Magisterial Level, Coimbatore and acquit him.
Prayer in Crl.R.C.No.1186 of 2023:
This Criminal Revision Case is filed under Sections 397(1) & 401 of Cr.P.C. praying to call for records and set aside the judgment dated 22.08.2022 passed in C.A.No.202 of 2020 on the file of the III Additional District & Sessions Judge, Coimbatore confirming the order of conviction & sentence passed vide judgment dated 21.10.2020 in C.C.No.257 of 2018 on the file of the Judicial Magistrate, Fast Track Court No.1 @ Magisterial Level, Coimbatore and acquit him.)
Common Order:
These criminal revision cases have been filed by the petitioner seeking to set aside the judgment dated 22.08.2022 passed by the learned III Additional District & Sessions Judge, Coimbatore in C.A.Nos.201, 200 & 202 of 2020 respectively, confirming the order of conviction & sentence passed by the learned Judicial Magistrate, Fast Track Court No.1 @ Magisterial Level, Coimbatore vide judgment dated 21.10.2020 in C.C.Nos.256, 255 & 257 of 2018 respectively and acquit him.
2. The petitioner in these cases is an accused. The respondent/complainant filed a private complaint under Section 200 of Cr.P.C against the present revision petitioner/accused for an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as -NI Act-).
3. The case of the respondent/complainant in a nutshell is as follows:
The respondent/complainant is carrying on business in dealing with different types of kraft papers under the name and style of “Vimala Packaging” for the past several years. The respondent/complainant authorized her husband Mr.Prakash Chand as Power of Attorney to file a complaint and give evidence against the petitioner/accused by way of Power of Attorney dated 03.03.2018. The petitioner/accused, Proprietor of M/s.Akshaya Traders approached the respondent/complainant and placed an order for supplying kraft papers on credit basis. The respondent/complainant also accepted the order of petitioner/accused and supplied goods on credit basis as detailed hereunder:
“TABLE”
3.1. Though the petitioner/accused purchased the goods, failed to pay the total amount of Rs.18,90,507/- for the above invoices. On repeated demands made by the respondent/complainant, the petitioner/accused issued 9 Cheques drawn on Equitas Bank, Theni – Periyakulam Branch, Theni towards discharge of partial liability and also, assured to honour the same on presentation for collection. The details of 9 Cheques issued by the petitioner/accused are as follows:
“TABLE”
3.2. The balance amount payable by the petitioner/accused was Rs.9,90,507/-, out of which, the petitioner/accused paid a sum of Rs.6,25,000/- by way of Cheque and RTGS on different dates to the respondent/complainant. Those payment details are given below:
“TABLE”
3.3. As per the instructions of the accused, the respondent/complainant presented the following cheques for collection on 25.01.2018 with her banke
AI
The main legal point established in the judgment is the competence of a husband as a witness in criminal proceedings and the importance of establishing a legally enforceable debt under the NI Act.
The court affirmed that a complaint under Section 138 requires valid authorization from a company’s board, and without it, the complaint is invalid regardless of other evidence.
A power of attorney holder can file a complaint under Section 138 of the NI Act if they have personal knowledge of the transaction, and this must be explicitly stated in the complaint.
Managing partners are vicariously liable for offences committed by firms under Section 138 of the NI Act.
The burden of proof on the complainant to establish the transaction and execution of the cheque under Section 138 of the Negotiable Instruments Act.
Punishment under Section 138 of Act is not a means of seeking retribution but a means to ensure payment of money.
(1) Dishonour of cheque – In cases where payee/complainant is company, all that is necessary to be demonstrated before Magistrate is that complaint is filed in name of payee.(2) Dishonour of cheque ....
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