Crl.R.C.No.498 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.09.2022
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.498 of 2017
M.Palanimalai
Prop.Sree Bala Tyres,
3-3-18-C-10, Murugan Theatre Opposite,
Salem Main Road,
Akkamma Pettai,
Sankari, Sankari Taluk,
Salem District 631 301. .. Petitioner
/versus/
M/s CEAT Limited Co.,
Rep.by Power Agent T.R.Kamalakannan,
Manager Commercial,
No.51, Old No.9, Annasalai,
Negelkeni, Chrompet,
Chennai 600 044. .. Respondent
Prayer:- Criminal Revision Case has been filed under Section 397 (1)
and 401 of Cr.P.C., to call for the records and allow the Criminal Revision
by set aside the judgment dated 04.08.2015 in STC No.544 of 2013 on the
file of the Judicial Magistrate, Fast Track Court No.1, Erode, confirmed by
Page No.1/11
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.498 of 2017
the I Additional District and Sessions Judge, Erode in C.A.No.98 of 2015 by
judgment dated 16.12.2016.
For Petitioner :Mrs.Sumithra Vasudevan
For Respondent :Mr.Aparajitha Vishwanath
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ORDER
This Criminal Revision Case is preferred against the concurrent finding of the Courts below on a private complaint filed under Section 138 of the Negotiable Instruments Act, 1881.
2. The case of the complainant is that the petitioner herein is the authorised dealer under the complainant company, which is the manufacturer and trader of tyres. There is an agreement between the complainant and the accused regarding the dealership. As per the terms of the agreement, the goods used to be supplied on credit basis and invoice amount to be paid within time prescribed. The petitioner and the respondent are maintaining upon the mutual running account. As on the accounting year Page No.2/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 of 2010-2011, the accused over due to Rs.2,10,860.17, as per statements of accounts and to discharge the said debt, gave two cheques drawn from their account maintained at Induslnd Bank Sankiri Branch. One dated 29.07.2011 for Rs.50,000/- and another dated 24.08.2011 for Rs.1,06,531/-. On the request of the accused, the cheques were presented for collection on 24.01.2012, but cheques got bounced with an endorsement 'Insufficient Fund'. On receipt of the memo from the drawer bank, statutory notice dated 03.02.2012 was caused on the accused, who received it on 06.02.2012 and caused reply notice dated 13.02.2012. Not being satisfied with the reply, complaint has been filed and the same was taken cognizance of offence in S.T.C.No.544 of 2013. To the Power of Attorney deed, the complainant has prosecuted the case. Two witnesses and 10 exhibits were relied. To rebut the presumption and disprove the case of the complainant, the accused mounted the witness box and has been examined as DW1.
3. Both the Courts below held that the accused has failed to discharge the burden of proving his innocence by preponderance of Page No.3/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 probability. Having admitted the signatures found in the cheques and the transaction under Section 139 of the Negotiable Instruments Act, 1881, the presumption is in favour of the complainant, which has not been rebutted. The testimony of the accused recorded by the trial Court that the complainant company received five blank cheques as security for the goods supplied and two of those cheques were misused, inspite of the fact that the goods supplied by the complainant were defective and the same was returned. This defence theory did not find favour with him before the Courts below and since it was not supported by any other documentary evidence and the self serving statement of the accused no way only preponderance of probability to discharge the burden. Aggrieved by the concurrent findings, the present Criminal Revision Case is filed.
4. The learned counsel appearing for the petitioner is primarily contended that the power of attorney[PW-1] has no locus to represent the complainant company, since he admits that he is not aware of the transaction for which the subject cheques were issued. This witness has not Page No.4/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 even aware of the cheques date and amount and the date on which the cheques were issued. Having admitted the ignorance of the transaction, the evidence of PW-1 ought not have been relied on by the Courts below. Also submitted that the power of attorney deed marked as Ex.P1 is also a defective, which does not enable the PW-1 to represent the company. The address and description found in Ex.P1 does not tally with the address and description of PW-1.
5. This Court on perusal of Ex.P1-power of attorney deed dated 28.03.2006 finds that M/s CEAT Limited has appointed Mr.T.R.Kamala Kannan, who was serving as Commercial Officer of the company as its attorney for the purpose of activities enlisted in the deed and one such purpose is to prosecute, enforce, defence, adjust, compromise, settle and appear in all actions, he can claim including the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881. On the strength of this power of attorney deed, the complaint under Section 138 of the Negotiable Instruments Act has been filed. The said company the payee Page No.5/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 namely M/s CEAT Limited has been represented by its power of attorney Mr.T.R.Kamala Kannan and it is specifically stated that the company is represented by its power of attorney. Being the company incorporated under law, the complainant company a juristic body should be represented by a human agency. Accordingly, Mr.T.R.Kamala Kannan represents M/s CEAT Limited based on the power of attorney deed marked as Ex.P1, which is authorised him to prosecute and defend the complainant company in the criminal proceedings initiated under Section 138 of the Negotiable Instruments Act, 1881. Therefore, the contention of the petitioner that the power of attorney deed is not effective one and the said Mr. T.R.Kamala Kannan is not a competent to M/s CEAT Limited, appears to be unsustainable argument and the Courts below has rightly declined to such argument.
6. Regarding the ignorance of the transaction as admitted by the witness, the learned counsel appearing for the respondent/complainant submitted that the transaction is supported by the documentary evidence Page No.6/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 namely, statement of account marked as Ex.P9 and as The Evidence Act contemplates oral and documentary evidence prevail upon the oral evidence, the documents which are maintained in the course of regular transaction of the business have to be given due credit, while appreciating the evidence. Accordingly, Ex.P9 the statement of accounts clearly show that the accused is liable to pay a sum of Rs.2,10,860/- for which the two subject cheques were issued for discharging the loan. As far as the contention that the goods supplied were defective and returned is not supported by any of the documents and it is only oral self-serving statement of the accused. Hence, the Courts below has rightly declined to accept the evidence of DW1.
7. This Court, on considering the rival submissions, finds that the cheque marked as Ex.P2 and Ex.P3 are in favour of M/s CEAT Limited drawn by Sree Bala Tyres and singed by the authorised signatory. Therefore, on going by the definition of drawer and payee as laid in the Negotiable Instruments Act, 1881, for dishonour of the cheque Sree Bala Tyres which is the proprietary concern is liable to be prosecuted by M/s Page No.7/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 CEAT Limited the holder of the cheque. Since Sree Bala Tyres is the Proprietary concern and Mr.Palanimalai the owner of the firm, the signatory of the cheque has been prosecuted by M/s CEAT Limited. The statutory notice, which was marked as Ex.P5 dated 03.02.2012, sent to Mr.Palanimalai Proprietor of Sree Bala Tyres by M/s CEAT Limited represented by power of attorney Mr.T.R.Kamala Kannan and therefore, the complaint has been filed.
8. There is no infirmity in lodging the complaint against the person, who represents the petitioner company as well as the respondent firm. As rightly pointed out by the learned counsel appearing for the respondent, if there is really any supplied goods defective, that should have been brought to the notice of the complainant company and adequate arrangements should have been made by them on proper documentation. Since nothing of that sort has been occurred in the transaction, the accused is not able to produce any document to indicate that the consignment supplied by the complainant was defective. In this context, this Court finds Page No.8/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 that except some excuse for non payment mentioned in the reply notice marked as Ex.P8, there is no substantive evidence to indicate the complainant supplied defective tyres and the same was returned back to adjust the money payable by the accused.
9. For the said reasons, this Court finds that there is no error in the finding of the Courts below. Hence, the finding of the Courts below holding the accused guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 is confirmed. The learned counsel appearing for the revision petitioner submitted that the petitioner is ready to pay the cheque amount.
10. Taking note of the said submission, the judgment conviction is confirmed and sentence is modified to the effect that the petitioner shall pay compensation of Rs.2,00,000/-, since the due amounts are Rs.1,06,531/- and Rs.50,000/-and the litigation is pending for past 10 years, it will be adequate and appropriate to direct the petitioner to pay a sum of Rs.2,00,000/- as Page No.9/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 compensation to be paid to the complainant. The said compensation amount shall be paid within a period of six months from today in default the petitioner shall be sentenced to undergo 4 months SI.
11. Accordingly,this Criminal Revision Case is partly allowed.
23.09.2022 Index:yes/no speaking order/non speaking order ari To:
1.The Judicial Magistrate, Fast Track Court No.1, Erode.
2.The I Additional District and Sessions Judge, Erode. Page No.10/11 https://www.mhc.tn.gov.in/judis Crl.R.C.No.498 of 2017 DR.G.JAYACHANDRAN,J.
ari Crl.R.C.No.498 of 2017 23.09.2022 Page No.11/11 https://www.mhc.tn.gov.in/judis