Madras High Court
M.P.Selvaraj vs M/S.Karnataka Soaps And ... on 3 December, 2021
Crl.R.C.No1105 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.12.2021
CORAM :
THE HONOURABLE MS. JUSTICE R.N.MANJULA
Crl.R.C.No.1105 of 2016
M.P.Selvaraj .. Petitioner
Vs.
M/s.Karnataka Soaps and Detergents Ltd.,
rep.by its Authorized representative
Muthian, Seven Star Building
II Floor, A 80 Anna Nagar,
Chennai-600 102. .. Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to call for the records
pertaining to the order dated 12.07.2016 made in C.A.No.69 of 2014 on
the file of the XVIII Additional Sessions Court, Chennai confirmed the
order dated 26.02.2014 made in C.C.No.11527 of 2002 on the file of the
Metropolitan Magistrate, FTC-I, Egmore, Chennai and set aside the same.
For Petitioner : Mr.Sudarsanasundar
For Respondent : Mr.N.Karthikeyan
ORDER
This Criminal Revision Case has been preferred challenging
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Crl.R.C.No1105 of 2016
the judgment of the learned XVIII Additional Sessions Judge, Chennai
dated 12.07.2016 passed in C.A.No.69 of 2014.
2. This case has arisen out of a private complaint made on
the allegations that the complainant is a manufacturer and marketer of
soaps, detergents and Agarbathis. The accused, who is the retailer in the
same business, was having business transaction with the complainant. In
the course of such transactions, the accused had outstanding amounts and
had issued cheques for discharging the same. One such cheque issued on
23.08.2001 for a sum of Rs.5,07,246.83 was drawn on Canara Bank,
Nasiyanoor Branch, was presented by the complainant for collection
through the Corporation bank, Anna Nagar Branch, Chennai. The said
cheque was returned on 28.08.2001 with an endorsement "Account
recalled". After issuing statutory pre suit notice and complying with the
legal mandates, the complainant has filed the complaint against the
accused for committing the offence under Section 138 r/w 142 of the
Negotiable Instruments Act (hereinafter referred as N.I.Act). The case
was taken on file by the learned Metropolitan Magistrate, Fast Track
Court No.I at Egmore, Chennai, in C.C.No.11527 of 2002 and the trial
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Crl.R.C.No1105 of 2016
was conducted.
3. On the side of the complainant, two (2) witnesses were
examined as PW.1 and PW.2 and six (6) documents were marked as
Ex.P.1 to Ex.P.6. On the side of the accused, no witness was examined
and no document was marked.
4. After the conclusion of the trial and on consideration of
the materials available on record, the learned trial Judge found the
accused guilty under Section 138 of N.I.Act, convicted and sentenced him
to undergo Simple Imprisonment for 1 year and awarded an amount equal
to the cheque amount of Rs.5,07,246.83 as compensation to be payable
to the complainant within a period of 3 months; in default to undergo S.I
for further period of 3 months.
5. Against the conviction, the petitioner has filed an appeal in
C.A.No.69 of 2014 before the XVIII Additional Sessions Judge, Chennai
and that was dismissed on 12.07.2016. Aggrieved over that the accused
had preferred this Criminal Revision Case.
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Crl.R.C.No1105 of 2016
6. Heard the learned counsel for the petitioner/accused and
the learned counsel for the respondent/complainant.
7. The learned counsel for the petitioner/accused submitted
that the respondent/complainant is not an authorized person to file the
case on behalf of the respondent's company; even as per the documents of
the petitioner, one Muthian was given power to represent the company
and he was given with the power only in the year 2003; since the
complaint was filed in the year 2001, he is ineligible to represent the
company; hence the complaint itself is not maintainable. The next
contention raised by the learned counsel for the petitioner is that though
the cheque was executed by the petitioner, it was not given for any
enforceable debt and the respondent/complainant has not proved that the
cheque was issued for a legally enforceable debt.
8. The learned counsel for the respondent/complainant
submitted that when the complaint was filed in the year 2001, one Syed
Iliyas was given power to represent the company; since he left the
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Crl.R.C.No1105 of 2016
company, his successor by name S.Muthiah was given the power to
represent the company, since the company was being represented all
along by an authenticated person, it cannot be claimed that the person
who represented before the Court did not have any authorization; when
the execution of the cheque was not denied, the respondent/complainant
is entitled to the initial presumption in his favour; and the burden is on
the petitioner/accused to prove the contrary; he did not rebut the initial
presumption by any acceptable evidence and hence the Courts below are
right in finding the accused guilty under Section 138 of N.I.Act.
9. Points for consideration:-
Whether the order of the learned Appellate judge is unfair,
improper and not legal as claimed by the Revision Petitioner?
10. The fact that the petitioner is a company is not in
dispute. The only contention of the learned counsel for the petitioner is
that the person who represented the company and by whom the
complaint was filed before the Court did not have any authorization to
represent the company on the day when the complaint was given. It is
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Crl.R.C.No1105 of 2016
made clear that on the date, when the complaint was made, one Syed
Ilyas held the power to represent the company. Since the said person had
left the company, his successor, by name Muthian has been given with
power to represent the company in the year 2003. Since the legal person
before the Court is only a company, its employees like Branch Manager
or Accountant would change from time to time. It cannot be said that the
same person who had represented the company at some point of time
should continue to represent the company at all times. Since there is a
change in persons holding the posts, the complainant has amended the
cause title and the name of the present power of attorney is included.
11. Despite the petitioner/accused has raised that Syed Iliyas did
not have any power to represent the company. That was not established
before the Court. In fact the respondent/defacto complainant company did
not have any objection for Syed Iliyas to represent the company at the
time when the complaint was filed. In the absence of any denial by the
respondent company itself, I am not able to countenance the arguments of
the learned counsel for the petitioner that the person, who represented the
company, had no due authorization. The Court below have rightly
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Crl.R.C.No1105 of 2016
appreciated this point in favour of the respondent/complainant.
12. Once the execution of the cheque is not denied, it is
needless to point out the initial presumption under Sections 118 and 139
of N.I.Act, goes in favour of the respondent/complainant. The financial
capacity of the company cannot be in question because the money was
not given as loan. It is also not in dispute that there was business
transaction between the complainant and the accused.
13. So in these type of the cases, the burden is on the
petitioner/accused to rebut that the amount shown in the cheque is not for
discharge of any debt. Mere statements or suggestions made in this
context during the cross examination of the petitioner's witness is not
sufficient to serve as rebuttal proof in favour of the petitioner/accused.
Even, if it is not obligatory on the part of the petitioner/accused to get into
the box and produce any materials on his own, it should be shown that
from the materials produced by the complainant itself that the claim of
the complainant is improbable and inappropriate. The Courts below have
correctly appreciated the evidence in proper perspective and held that the
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Crl.R.C.No1105 of 2016
cheque was issued for legally enforceable debt only.
14. In view of the above said reasons, the judgment of the
lower Courts do not warrant any interference. However the learned
counsel for the petitioner/accused submitted that taking into consideration
the age and family circumstances and the business loss sustained by the
petitioner, some indulgence should be shown in the matter of punishment.
Hence I feel that the sentence imposed on the petitioner/accused can be
reduced from one year Simple Imprisonment, to 6 months Simple
Imprisonment.
15. In the result, this Criminal Revision case is partly
allowed. The judgment of the learned Metropolitan Magistrate, FTC-I,
Chennai, which is confirmed by the XVIII Additional Sessions Court,
Chennai is modified to the extent that the accused is found guilty for the
offence under Section 138 of N.I.Act and he stands convicted and
sentenced to undergo six (6) months Simple Imprisonment and imposed
with the compensation of Rs.5,07,246.83/- to be payable to the
complainant; in default, to undergo three (3) months Simple
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Crl.R.C.No1105 of 2016
Imprisonment. The period of incarceration undergone by the accused can
be set off under Section 428 Cr.P.C. The learned trial Judge is directed to
issue Non Bailable Warrant for securing the accused and send him to
prison to undergo the remaining period of sentence.
03.12.2021
Index : Yes/No
Internet : Yes/No
rpl
To
1. The XVIII Additional Sessions Court, Chennai.
2. The Metropolitan Magistrate, FTC-I, Egmore, Chennai.
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Crl.R.C.No1105 of 2016
R.N. MANJULA, J.
rpl
Crl.R.C.No.1105 of 2016
03.12.2021
https://www.mhc.tn.gov.in/judis
