S.M.Logistic vs M/S. Opus Dei Logistrics India ...
2022 Latest Caselaw 16093 Mad

                                                                                  Crl.R.C.No.1500 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 11.10.2022

                                                         CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                               CRL.R.C.No.1500 of 2018
                                        and Crl.M.P.Nos.17567 & 17569 of 2018

                S.M.Logistic,
                Rep. by its Authorized Sign.
                A.R.Sulthan Mohideen,
                No.4/500, 4th Block,
                JJ Nagar, Mogappair East,
                Chennai – 600 037.                                                   ... Petitioner

                                                          Vs.

                M/S. Opus Dei Logistrics India Pvt., Ltd.,
                Rep. by its Manager,
                B.Porchezhian,
                No.111/54, 2nd Floor,
                Linghi Chetty Street,
                Chennai – 600 001.                                                   ... Respondent
                Prayer: The Criminal Revision filed under Section 397 r/w 401 of Code of
                Criminal Procedure to call for the records pertaining to C.C.No.1401 of 2016
                on the file of the learned Metropolitan Magistrate FTC-IV, GT., Chennai, dated
                02.01.2018 and Crl.A.No.39 of 2018 on the file of the XIX Additional City
                Civil and Sessions Court, Chennai, dated 01.10.2018 and set aside the same.
                                        For Petitioner     : Ms.K.Akshaya
                                                             for Mr.S.Manoharan

                                        For Respondent     : Mr.S.Rajendrakumar
                                                             for M/S. Norton and Grant
https://www.mhc.tn.gov.in/judis
                Page 1 of 9
                                                                                 Crl.R.C.No.1500 of 2018




                                                       ORDER

This petition has been filed to set aside the Judgment 01.10.2018 passed

in Crl.A.No.39 of 2018 on the file of the XIX Additional City Civil and

Sessions Court, Chennai, confirmed the conviction of sentence dated

02.01.2018 in C.C.No.1401 of 2016 on the file of the Metropolitan Magistrate

FTC-IV, GT., Chennai.

2. This Revision has been filed against the judgment passed in

Crl.A.No.39 of 2018 on the file of the XIXth Additional City Civil and

Sessions Court, Chennai, dated 01.10.2018, thereby confirmed the sentence

imposed by the Metropolitan Magistrate FTC-IV, GT., Chennai, in

C.C.No.1401 of 2016, thereby convicted the petitioner for the offence under

Section 138 of Negotiable Instruments Act.

3. The respondent lodged a complaint against the petitioner alleging that

the respondent is NVOCC operators/forwarders and engaged in the business of

support service to export and import. While so, the petitioner approached the

respondent on 29.06.2015 to book open top container for transporting live

plants from Chennai port to Doha port. The respondent had acted as an

https://www.mhc.tn.gov.in/judis

Crl.R.C.No.1500 of 2018

intermediary between the accused and M/S. Panlloyd Logistics Pvt., Ltd., who

used to supply containers and further facilitated to book container with them.

As instructed by the petitioner, the said M/S. Panlloyd Logistics Pvt., Ltd.,

booked the consignor name in the Bill of Lading as Burg International and the

consignee name as Masthal Al Hadaf, Quatar, UAE. As requested by the

petitioner, the respondent had paid the ocean freight charges to the said M/S.

Panlloyd Logistics on their behalf and instructed to raise invoice including

their charges. Accordingly, they raised invoice in the joint name. It is the fact

that only when entire amount is paid then alone the Bill of Lading will be

handed over to the consignor. The original bill of lading was also handed over

to the petitioner on 20.11.2015 and the respondent raised invoice inclusive of

their charges on M/S. Burg International which was undertaken to be paid by

the petitioner. Accordingly, the petitioner had signed a post-dated cheque for

the sum of Rs.1,50,209/- and when it was presented for collection, the same

was returned for the reason ''funds insufficient''. After causing statutory notice

to the petitioner the respondent lodged a complaint.

4. On the side of the respondent, PW1 was examined and Exs-P1 to P10

were marked and on the side of the petitioner, DW1 was examined and no

documentary evidence was marked.

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Crl.R.C.No.1500 of 2018

5. On perusal of the oral and documentary evidence, the trial Court

found the petitioner guilty and convicted him for the offence under Section

138 NI Act and sentenced him to undergo simple imprisonment for the period

of six months and also ordered compensation to the tune of cheque amount.

Aggrieved by the same, the petitioner preferred an appeal and the same was

dismissed by confirming the judgment passed by the trial Court. Hence this

Revision.

6. The learned counsel for the petitioner would submit that the cheque

was issued as security purpose and not issued for any valuable consideration.

The goods sent by the respondent were ought to have been delivered at Doha,

Qatar. However, the delivery has not been made to the consignee in Doha.

Therefore, there is absolutely no legal enforcement of a liability in favour of

the respondent herein. The alleged cheque was issued as security and it was

not meant to be encashed without delivering the goods to the consignee at

Doha, on whose name only the bill has been raised by the respondent herein.

She would further submit that there is no liability while entering into the

agreement for rendering service through handing over the articles to consignee

at Doha. Such service having not been performed, thereby failing to perform https://www.mhc.tn.gov.in/judis

Crl.R.C.No.1500 of 2018

what they have accepted, amounts to ''no liability'' to honour the cheque

handed over as security.

7. Per contra, the learned counsel for the respondent would submit that

the petitioner failed to rebut the case of the respondent herein. The respondent

facilitates the consignment from one place to another place therefore, the

petitioner ought to have paid the freight charges and later on got reimbursed

him.

8. In so far as, the agreement for supply of consignment is concerned,

the obligation has been well done and accomplished by the respondent herein.

Therefore, both the Courts below have rightly convicted the petitioner for the

offence under Section 138 of NI Act.

9. Heard the learned counsel for the petitioner and the learned counsel

for the respondent and perused the entire materials available on record.

10. The case of the respondent is that he was engaged by the petitioner

to transport live plants from Chennai Port to Doha Port. Accordingly, the

respondent facilitated to book containers to export the plants. In fact, the https://www.mhc.tn.gov.in/judis

Crl.R.C.No.1500 of 2018

petitioner and M/S.Panlloyd Logistics, who used to supply containers and

further facilitated to book container with them. As instructed by the petitioner,

the said M/S. Panlloyd Logistics booked the consignor name in the bill of

lading as Burg International and the consignee name as Masthal Al Hadaf,

Quatar, UAE. As Requested by the petitioner, the respondent had paid ocean

freight charges to the said M/S. Panlloyd Logistics Pvt., Ltd., on their behalf

and instructed to raise invoice to the tune of Rs.1,50,209/- for which the

petitioner already issued post dated cheque. The only stand taken by the

petitioner is that the cheque was issued as security for the goods sent through

the respondent ought to have delivered at Doha, Quatar, the delivery has not

been made to the consignee in Doha. Therefore, the petitioner is not liable to

pay the said amount.

11. It is seen from the records revealed that the cheque had been

admittedly issued for the liability and it is not the factum of supply that is the

concern but it is the factum of monetary liability which caused upon the

petitioner whether the goods were consigned at the consignee's end in a rotten

state is not the concern of the respondent herein. Even according to the

petitioner, the respondent, who facilitated the consignment from Chennai Port

to Doha Port. As per the agreement for supply by way of consigning is https://www.mhc.tn.gov.in/judis

Crl.R.C.No.1500 of 2018

concerned, the obligation had been well done and accomplished by the

respondent herein. The respondent is not concerned about the kind of goods

that are consigned. If the goods are perishable in nature, it should have been

taken care of, not by the logistics people but by the consignor and consignee as

to the manner in which the goods should be packed, taking utmost care that the

goods do not rot while in transit.

12. Admittedly, the plants were not insured and as such the respondent is

no way liable for any happening to the consignment. Therefore, it cannot be a

reason to dishonour the cheque issued for a legally enforceable liability and

the obligations which was already performed by the respondent herein.

Therefore, the cheque issued by the petitioner is only for liability and not for

security purpose. Hence, the Court below rightly convicted the petitioner for

the offence under Section 138 of NI Act, this Court finds no infirmity or

illegality in the judgment passed by the Court below.

13. Accordingly, the Criminal Revision case stand dismissed.

Consequently, connected miscellaneous petitions are closed.

11.10.2022 https://www.mhc.tn.gov.in/judis

Crl.R.C.No.1500 of 2018

Index : Yes / No Speaking / Non Speaking order ata

To

1. The Metropolitan Magistrate FTC-IV, G.T.Chennai.

2. The XIX Additional City Civil and Sessions Court, Chennai.

https://www.mhc.tn.gov.in/judis

Crl.R.C.No.1500 of 2018

G.K.ILANTHIRAIYAN, J.

ata

Crl.R.C.No.1500 of 2018

11.10.2022

https://www.mhc.tn.gov.in/judis