CRIMINAL APPEAL 62 of 2002 on 17 May 1997

IN THE HIGH COURT OF JUDICATURE AT MADRAS

THE HONOURABLE Mr.JUSTICE K.KALYANASUNDARAM

Prakash,Rep. by Power Agent Mr.Anbazhagan,No.23, Kongu Nagar,Karungal Palayam,Erode - 3...Appellant/Respondent/Complainant

C.RajaeswariProprietor, Venkatesvarer Terry Mills,Nasiyanur (P.O.),Erode -7...Respondent/Appellant/Accused

Prayer:-

This Criminal Appeal is filed under Section 378 ofCr.P.C. to set aside the order of Acquittal dated 14.08.2003made in C.A.No.62 of 2002 passed by the I Additional SessionsJudge, Erode and confirm the judgment of conviction dated20.03.2002 made in C.C.No.597 off 1997 by the JudicialMagistrate No.I, Erode.

This appeal has been preferred against the judgment ofthe I Additional Sessions Judge, Erode, passed in CriminalAppeal No.62 of 2002 dated 14.08.2003.

2. The appellant is the complainant in a privatecomplaint filed under Section 138 of the Negotiable InstrumentsAct. The case of the complainant is that on 17.04.1997, theaccused borrowed a sum of Rs.2,00,000/- as hand loan from thecomplainant and in order to discharge her liability, a cheque,dated 17.05.1997 bearing No.001953 was issued. When the cheque was presented on 13.10.1997, it was dishonoured for the reasonthat payment stopped. On 16.10.1997, the complainant caused anotice through his counsel. Since the cheque amount was notpaid, the complaint came to be filed.

3. The case of the accused before the Trial Court wasthat the complainant is doing business in the names of PremierTextile Mills, Premier Creations and Shree Aravinth Exports andthe accused in the course of business transaction issued thecheque as security and discharged the entire liability. She didnot borrow hand loan from the complainant and hence she need notpay any amount under the cheque.

4. In order to prove the case, one Anbalagan, Power Agentof the complainant was examined as PW1 and one Velusamy wasexamined as PW2 and Exs.P1 to P7 were marked. The accusedexamined herself as DW1 and produced documents Exs.D1 to D6.

5. The Trial Court after considering the oral anddocumentary evidence, held that the accused is liable to pay thecheque amount and convicted her and sentenced to undergo oneyear simple imprisonment and imposed a fine of Rs.5,000/-, indefault, to undergo simple imprisonment for two months.

6. Challenging the above conviction and sentence, theaccused preferred an appeal in C.A.No.62 of 2002 before the IAdditional Sessions Judge, Erode. The Appellate Court acquittedthe accused holding that the Power Agent, PW1, did not havepersonal knowledge of the transaction between the accused andthe principal and the complainant failed to produce the books ofaccounts as per the order of the learned Magistrate inCrl.M.P.No.133 of 1999. Assailing the judgment of acquittal, thepresent appeal has been filed.

7. The learned counsel for the appellant would urge thatthe accused has not disputed issuance of cheque in favour of thecomplainant and there was no reply to the notice issued by thecomplainant and hence, as per the decisions of the Hon'bleSupreme Court reported in 2001 (8) SCC 458 (K.N.Beena vs.Muniyappan and another) and in 2010 (11) SCC 441 (Rangappa vs.Sri Mohan), presumption has been drawn against the accused andthe order of acquittal is liable to be set aside.

8. It is further contended by the learned counsel for theappellant that by the order of the learned Magistrate irrelevantdocuments were directed to be produced and as per the decisionsof this Court reported in 2004 (4) CTC 729 (Natarajan vs.Marappa Gounder) and Criminal Appeal Nos.387 to 396 of 2006,dated 24.04.2015 in Indiankannon.org/doc/48756510/, adverseinference cannot be drawn in for such non production.

9. Per contra, the learned Senior Counsel appearing forthe respondent would argue that indisputably, the complaint cameto be filed by the Power Agent and in the course of evidence,Power Agent himself admitted that he had no personal knowledgeabout the transaction between the principal and the accused and,PW1 has further admitted that the documents sought for by theaccused would reveal as to whether the liability was dischargedby the accused.

10. It is submitted by the learned Senior Counselappearing for the respondent that the documents sought for bythe accused are relevant to prove that there was businesstransaction between the accused and the complainant and in thecourse of transaction, the accused has discharged her entireliability. Hence, the Appellate Court has rightly drawn adverseinference for non-production of the documents.

11. The learned Senior Counsel further submitted thatthis is an appeal against acquittal, and when finding is basedon the evidence and if two views are possible, onesupporting the acquittal and another in favour of conviction,the High Court would not interfere merely because other view ispossible. In support of his contentions, he relied upon thejudgment of the Supreme Court reported in 2002 (1) SCC 71(Kashiram and Others vs. State of M.P.), wherein in paragraph21, it has been held as follows:

"21. We find the judgment of the High Court sufferingfrom several infirmities. The High Court was dealingwith an appeal against acquittal. Though the High Courtwhile hearing an appeal against an acquittal has powersas wide and comprehensive as in an appeal against aconviction and while exercising its appellatejurisdiction the High Court can reappraise theevidence, arrive at findings at variance with thoserecorded by the trial court in its order of acquittaland arrive at its own findings, yet, the salutaryprinciple which would guide the High Court is -- if twoviews are reasonably possible, one supporting theacquittal and the other recording a conviction, theHigh Court would not interfere merely because it feelsthat sitting as a trial Court its view would have beenone of recording a conviction. It follows as anecessary corollary, as has been held by this Court inChandu v. State of Maharashtra it is obligatory on theHigh Court while reversing an order of acquittal toconsider and discuss each of the reasons given by thetrial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligationconstitutes a serious infirmity in the judgment of theHigh Court."

12. In the case on hand, it is not disputed that thecomplaint was filed through the Power Agent. According to thecomplainant, the accused had borrowed a sum of Rs.2,00,000/- on17.04.1997 and the cheque was issued on 17.05.1997 to dischargethe liability. The defence taken by the accused was that therehad been continuous business transaction between the accused andthe complainant and in the course of the business, cheque wasissued as a security and the accused never borrowed hand loanfrom the complainant.

13. It is pertinent to note that the accused had taken upan application before the Trial Court in Crl.M.P.No.133 of 1999under Section 91 Cr.P.C., seeking direction to the complainantto produce Ledger, Day book and Bill book for the years 1995-96,1996-97 and 1997-98, but the complainant failed to produce thosedocuments.

14. It is the case of the appellant that the complainanthas produced a ledger for the year 1997-98 and the otherdocuments are irrelevant and hence, those documents were notproduced. Therefore, Court cannot draw adverse inference. I amnot able to agree with the submissions of the learned counselfor the appellant for the reason that the accused has taken aspecific defence that there was no money transaction betweenthem and in the business transaction, cheque was issued and inorder to establish her defence, the documents were sought to beproduced. The appellant instead assailing the order statingthat they are alien to the issue, by no stretch of imaginationcan be permitted to say that they are irrelevant documents.

15. There is no dispute with regard to the propositionlaid down in the judgments of the Supreme Court reported in 2001(8) SCC 458 and 2010 (11) SCC 441 cited supra, wherein it isobserved the Court has to draw presumption that the cheque hadbeen issued for discharging a debt or liability in view of theprovisions of Sections 118 and 139 of the Negotiable InstrumentsAct. However, in the case on hand, the cheque was dishonoured on13.10.1997. The accused sent a letter Ex.D5 categoricallystating that there was no liability existing between them andthe accused requested the complainant to return the cheques bymentioning the numbers. When such a stand was taken under Ex.D5that there was no liability existing between them, onus is onthe complainant to prove that there is legally enforceable debtunder the dishonoured cheque. In my considered view, thedocuments sought for by the accused are relevant and an adverseinference was rightly taken for non-production of the documents.

16. Perusal of the evidence of PW1 would show that he wasthe Power Agent of Prakash Jain, who is running three concernsin the names of Premier Textile Mills, Premier Creations andShree Aravinth Exports. PW1 did not have personal knowledgeabout the transaction except the issuance of the cheque. Theevidence of PW1 in cross examination would run thus:

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17. It is settled law that a Power Agent may be allowedto file, appear and depose before the Court in respect of theoffence punishable under Section 138 of the NegotiableInstruments Act. It is also equally well settled if the PowerAgent, who does not have personal knowledge about thetransaction between the principal and the accused, is notcompetent to give evidence.

Maharashtra and another), the Hon'ble Supreme Court in paragraph31, has held as follows:

"31. In view of the discussion, we are of the opinionthat the attorney holder cannot file a complaint in hisown name as if he was the complainant, but he caninitiate criminal proceedings on behalf of hisprincipal. We also reiterate that where the payee is aproprietary concern, the complaint can be filed:(i) by the proprietor of the proprietary concern,describing himself as the sole proprietor of the"Payee";(ii) the proprietary concern, describing itself as asole proprietary concern, represented by its soleproprietor; and (iii) the proprietor or the proprietary concernrepresented by the attorney holder under a power ofattorney executed by the sole proprietor."

19. It is evident from the deposition of PW1, he has nopersonal knowledge about the transaction between the complainantand the accused. In the light of the undisputed facts narratedsupra and the principles laid down in the decision of theSupreme Court, it would not be appropriate to convict theaccused relying upon the evidence of PW1.

20. For the foregoing reasons, I find no reason tointerfere with the judgment of the Appellate Court. In such viewof the matter, the judgment of the Appellate Court is confirmed.The appeal fails and the same is dismissed.

Sd/-

Assistant Registrar (CS-IV)

//True Copy//

pvs

Sub Assistant Registrar

To1.The I Additional Sessions Judge, Erode.2.The Judicial Magistrate No.I, Erode.

Crl.A.No.436 of 2004

MR(CO)GN(28/02/2019)