Madras High Court
M.K.Sasikumar vs M/S. Twin Exports on 31 May, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 16.08.2017
PRONOUNCED ON : 31.05.2018
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Criminal Revision Case No.5 of 2017
1.M.K.Sasikumar
Proprietor,
M/s. Srinivasa Traders
7/44-B, A.S.M. Colony,
Angeripalayam, Tiruppur.
2.M.K.Sasikumar
.. Petitioners/Accused
Versus
M/s. Twin Exports
rep. By its Manager &
Power Agent T.Vadivel
.. Respondent/Complainant
Criminal Revision Case has been filed under Section 397 r/w 401 of Cr.P.C., to set aside the order dated 30.11.2015 in C.C.No.628 of 2012 on the file of the learned Judicial Magistrate-II, Tiruppur as confirmed by the learned I Additional District and Sessions Judge, Tirupur in Crl.A.No.114 of 2015 dated 14.12.2016.
For Petitioners : Mr.U.M.Ravichandran
For Respondent : Mr. E.K.Kumaresan
O R D E R
This Criminal Revision case was filed against the judgement dated 14.12.2016 made in Crl.Appeal No.114 of 2015 on the file of the First Additional District and Sessions Judge, Tiruppur, confirming the order of the learned Judicial Magistrate-II, Tiruppur made in C.C.No.628 of 2012 by order dated 30.11.2015 whereby, the revision petitioner/accused was convicted and sentenced under Section 138 of the Negotiable Instruments Act, to undergo two years simple imprisonment and also to pay a compensation of Rs.23,32,050/- in default to undergo three months simple imprisonment.
2. The respondent herein is the complainant before the Trial Court and would be called as complainant hereinafter. The revision petitioner is the accused before the Trial Court, who will be called as accused for the sake of brevity. The case of the complainant before the Trial Court was that, it is a partnership firm where, there were two partners by name, one Ragasami and one Karunanathi. According to the complainant, the accused is a proprietary concern and was carrying on business of yarn trading, who, approached the complainant along with one Kumaraswamy, who was running a business concern with M/s.Thambi Yarns for supply of yarn to the complainant's firm. The complainant after having negotiated with the accused had agreed to purchase yarn from the accused and in this regard, the accused had issued invoices for purchase of yarn by the complainant on 25.04.2012 vide invoice No.7 and 8 and the accused had agreed to supply yarn by "30 slub yarn, Dharamdara variety", to the complainant and the complainant also had agreed to purchase the said yarn from the accused.
3. It is the further case of the complainant before the Trial Court that, the complainant pursuant to the said agreement, had issued two purchase orders on 25.04.2012 vide Purchase Order No.38 and 39 and the complainant paid a sum of Rs.5,00,000/-by Demand Draft No.929131 and a sum of Rs.7,70,080/- by Demand Draft No.929132 to the accused and also paid a sum of Rs.12,70,080/- by cash on 25.04.2012 to the accused and after receiving the said sum totalling Rs.25,40,160/- towards full satisfaction for the supply of yarn for the agreed quantity, the accused had agreed to supply the yarn within four days time.
4. It is the further case of the complainant that, the accused since had agreed to supply the yarn in entirety within four days i.e., on or before 29.04.2012, only on the basis of the said assurance and agreement, the entire amount was paid by the complainant on 25.04.2012 by way of demand draft and by way of cash as stated above. However, within the time stipulated, the accused did not supply the yarn. Therefore, when the complainant demanded either to supply the yarn or to return the amount paid by the complainant, the accused had issued a cheque on 04.05.2012 in favour of the complainant, for a sum of Rs.12,70,080/- through cheque No.000044, drawn on Karur Vysya Bank, Tiruppur Branch as proprietor of the accused concern. The accused had issued another cheque on 11.05.2012 in favour of the complainant for a sum of Rs.5,00,000/- through cheque bearing No.116109, drawn on ICICI Bank, Tiruppur Branch in individual capacity. The accused had further issued another cheque on the same day i.e., on 11.05.2012 to the complainant, in favour of the complainant for a sum of Rs.7,70,080/- through cheque bearing No.116110 drawn on ICICI Bank, Tiruppur Branch.
5. It is the further case of the complaint that, since the three cheques had been issued by the accused towards the discharge of the legal liability of repaying the sum of Rs.25,40,160/-, the said cheques had been presented, as per the instructions given by the accused, for collection at the complainants bank on 05.07.2012 i.e., Bank of Baroda, Main Branch, Tiruppur. But the said cheque was returned through their bank on 06.07.2012 with the reason funds insufficient. The other two cheques i.e., second and third cheques also had been returned on the same day with the same reason i.e., funds insufficient.
6. It is the further case of the complainant that, in the meanwhile the complainant also had given a police complaint against the accused for the alleged offences punishable under Sections 406, 420, 467, 468, 471, 420, 294(b), 506(ii) of IPC. The said complaint was registered in Crime No.17 of 2012 by the Tiruppur Central Crime Branch and during investigation a sum of Rs.2,08,110/- was recovered by the police from the accused and the same had been deposited before the concerned Court, where the complainant by filing petition after getting order from the Court, had received the said amount on 05.09.2012.
7. It is the further case of the complainant that since all the three cheques issued by the accused were returned with the reason insufficiency of funds, giving those details, the complainant issued a notice under Section 138(b) of the Negotiable Instruments Act, hereinafter referred to as N.I.Act, to the accused on 27.07.2012. But the accused having received the said legal notice on 30.07.2012, neither had come forward to pay back the cheque amount nor had chosen to even issue a reply to the said notice thereby, the accused had wantonly and wilfully issued a cheque knowing well that the funds were not available with his bank and thereby he had committed the offence punishable under Section 138 of the N.I.Act and inspite of the statutory notice, since the accused did not come forward to pay back the money nor a reply was issued to the said statutory notice issued by the complainant, a private complaint was filed before the Trial Court to set the law in motion to punish the accused for the offence punishable under Section 138 of the N.I.Act.
8. The said complaint was taken on file by the Trial Court in C.C.No.628 of 2012. On behalf of the complainant, the power of attorney holder one Vadivel, who presented the complaint on behalf of the complainant, was examined as P.W.1 and on behalf of the complainant, 15 documents were marked as Exs.P1 to P15.
9. On behalf of the accused, the accused himself was examined as D.W.1 and one more person was examined as D.W.2.. Only one document, i.e., Ex.D1 was marked on behalf of the accused.
10. The Trial Court after having recorded the evidence and after hearing the arguments advanced by both sides and having appreciated the evidence as well as the case and counter case projected by both accused and the complainant, has come to the conclusion that, in so far as the amount claimed to have been paid by the complainant to the accused by way of two demand drafts, there had been a legally enforceable debt on the side of the accused towards the complainant and in so far as the claim made by the complainant for the payment of Rs.12,70,080/- by way of cash is concerned, the Trial Court had come to the conclusion that there were no legally enforceable debt in so far as the said claim made by the complainant for making the said payment of Rs.12,70,080/- by way of cash. In the result, in view of the legally enforceable debt of a sum of Rs.12,70,080/- received by the accused by way of two demand drafts i.e., one for a sum of Rs.5 lakhs and another for a sum of Rs.7,70,080/- the accused was found guilty for the offence punishable under Section 138 of the N.I.Act and accordingly, the Trial Court convicted and sentenced the accused for two years simple imprisonment and also awarded a compensation of a sum of Rs.23,32,050/- in default the accused was sentenced to undergo three months simple imprisonment, by its judgement and conviction dated 30.11.2015.
11. Aggrieved over the said judgement and conviction made against the accused, accused preferred an appeal in Crl.A.No.114 of 2015 before the First Additional District and Sessions Judge, Tiruppur. The learned First Appellate Court after having considered the case of both sides and after having gone through the evidences adduced on behalf of the complainant as well as the accused and the judgement of the Trial Court, ultimately, concluded that the Trial Court was correct in coming to the conclusion that the accused was found to be guilty for the offence punishable under Section 138 of the N.I.Act and accordingly, confirmed the conviction and sentence made against the accused by the Trial Court, by dismissing the said Criminal Appeal, by order dated 14.12.2016. Challenging the said conviction and sentence made by the Trial Court as confirmed by the First Appellate Court, the present Criminal Revision Case has been filed by the accused.
12. I have heard Mr.U.M.Ravichandran, learned counsel appearing for the accused, who is the revision petitioner herein as well as Mr.E.K.Kumaresan, learned counsel appearing for the complainant, who is the respondent herein.
13. Mr.U.M.Ravichandran, the learned counsel appearing for the accused would submit that, the complaint was filed not by the complainant directly, but by the Power of Attorney holder one Vadivel, who is P.W.1.. In this regard, the learned counsel straight away raised an objection that, since the complainant's firm is claimed to be a partnership firm and it is further alleged that it is an unregistered partnership firm, therefore, both the partners of the complainants firm are individuals and they act only as an agent of the firm and therefore, when they themselves shall be the agent of the firm, they cannot further delicate their power to any other party to act as their agent. In this regard, the learned counsel for the accused would submit that, the complaint as such, could not have been filed by a Power of Attorney Holder, as he cannot be an agent of an agent. The learned counsel for the accused would further submit that, since the complaint was filed only by a Power of Attorney Holder and since he was advised to file the complaint as claimed by him, on behalf of the complainant, at the most he may file the complaint, but he cannot give evidence in the Court on behalf of the principal, therefore, the evidence of the Power of Attorney Holder as P.W.1 on behalf of the complainant, cannot be taken into account.
14. It is the further arguments advanced by the learned counsel appearing for the accused that, when the firm itself is not the juristic person, whether it can maintain the complaint is yet another issue as the partnership firm is not legally entitled and it is only a person. In view of Section 69 of the Partnership Act, an unregistered firm cannot maintain any complaint and therefore, on that ground also, the complaint has to be inlimini dismissed. In support of his aforesaid legal submissions, learned counsel appearing for the accused has relied upon the following decisions:
(1) AIR 1999 A.P. 318 [M/s. Avula Constructions Pvt. Ltd. Vs. Sr.Div. Electrical Engineer, Traction Distribution and others];
(2) 2000 Crl.L.J.2386 [Mr.Amit Desai and another vs. M/s.Shine Enterprises and another];
(3) 2002 Crl.L.J.1689 [S.K.Real Estates and another, vs. Ahmen Meeran];
(4) AIR 2009 MAD 178 [Usha Ranganathan vs. N.K.V.Krishnan and another];
15. The learned counsel appearing for the accused would further submit that, before initiation of the prosecution for the alleged offence punishable under Section 138 of the N.I.Act, against the accused, already a police complaint had been given by the complainant for various IPC offences, such as under Sections 420, 468 of IPC etc., and in this regard an FIR was registered in Crime No.17 of 2012 at Tiruppur Central Crime Branch Police where, some amount of money had already been recovered and in view of the said criminal case which was pending, the proceedings for punishing the accused for the alleged offence under Section 138 of the N.I. Act ought not to have been initiated, as it amounts to double jeopardy. In support of his contention, learned counsel relied upon Article 20 of the Constitution of India and argued that, no person shall be prosecuted or punished for the same offence more than once.
16. Learned counsel would further argue that since some amount had already been recovered from the accused by way of adopting coercive method, by filing the complaint before the police, the said amount should have been deducted before presenting the alleged cheques for collection or at least before filing the complaint. Learned counsel would further argue that, since there had been confusion in the name of the accused firm either it is Seenivasa Yarn Traders or Sreenivasa Yarn Traders, the entire case of the complainant would go, in view of the difference in name of the accused. He would further argue that, merely because the cheques in question had been signed by the accused it cannot be presumed that the accused had committed the offence punishable under Section 138 of the N.I. Act as the commissioning of the offence would arise only at the time of proving the legally enforceable debt, by the complainant. Here in the case in hand, the learned counsel would submit that, since the entire yarn had been supplied and in support of that, document Ex.D1 was marked, it cannot be presumed that there had been a legally enforceable debt between the complainant and the accused and this aspect had not been properly considered both by the Trial Court as well as the First Appellate Court, he contended.
17. Per contra, Mr.E.K.Kumaresan, learned counsel appearing for the complainant would submit that, the business transactions between the complainant and the accused was accepted by the accused and the receipt of payment to the extent of Rs.12,70,080/- was accepted by the accused by way of two demand drafts and the execution and signature of the cheques in question also had been accepted by the accused. There need not be any further documents and evidence to prove the guilt of the accused. Learned counsel would further submit that, in so far as the maintainability of the complaint before the Trial Court by the Power of Attorney Holder is concerned, the Power of Attorney Holder is none other than the Manager of the complainants firm and in favour of him power has been executed on 06.09.2012 by both partners of the complainants firm and based on which only the complaint was filed. He would further argue that it is the settled preposition of law that power of Attorney Holder can maintain a complaint for the offence punishable under Section 138 of the N.I.Act and he also deposed before the Trial Court that he is having personal knowledge about the alleged transactions between the complainant and the accused. In support of the said contention, the learned counsel appearing for the complainant relied upon the following judgements:
(i)2017 SCC On line 8985 [Smt.Rani Kapoor vs. M/s.Silvermount];
(ii) 2015(9) SCC 622 [Mainuddin Abdul Sattar Shaikh vs. Vijay D. Salvi];
(iii) 2014(11) SCC 790 [A.C.Narayanan vs. State of Maharashtra and Another];
18. In so far as the yet another argument advanced by the learned counsel appearing for the accused that three cheques cannot be clubbed together in one complaint and since one cheque was issued by the firm another two cheques were issued by the individual capacity of the accused only, which cannot be clubbed in one single complaint and therefore, the complaint was not maintainable is concerned, the learned counsel appearing for the complainant would rely upon the following Division Bench judgement of this Court in 2006 (5) CTC 303 in the matter of Manjula vs. Colgate Palmolive (india) Ltd. Rep.by its authorised signatory.
19. In so far as the contention of the accused side that, since already a police complaint was given against the accused for the alleged offence under Section 420 of IPC etc., the further prosecution for the alleged offence under Section 138 of N.I.Act would amount to double jeopardy, is concerned, the learned counsel for the complainant has relied upon the following judgement of our High Court in 2007(4) CTC 520 [V.Kannan and other vs. State of Crime Branch, Namakkal, Namakkal District].
20. Learned counsel appearing for the complainant would further rely upon the judgement of this Court reported in 2010(3) MWN(Cr.)DCC 136 [M.Vairavan vs.T.M.Selvaraj] for the proposition that, at the time of sending reply by the accused since it was not stated by the accused that the cheque in question was a blank cheque signed by him, the defence taken by the accused to rebut the presumption need not be accepted. In support of the contention that, even an un-registered firm can maintain a complaint for the offence under Section 138 of the N.I.Act, the learned counsel appearing for the complainant would rely upon the following judgement in 2012 (4) L.W.510 [M/s.Karthick & Co. rep. by its Manager and other vs. M/s.Vadivel Sizing & Weaving Mills P. Ltd. and another].
21. By relying upon these judgements, the learned counsel appearing for the complainant would submit that the grounds urged by the accused side in this revision case in fact had already been urged and argued before the First Appellate Court, who in turn after having considered the said submissions made on behalf of the accused, had rejected the same. Therefore, the learned counsel for the complainant would submit that, none of the grounds urged herein by the accused side would be tenable, and further, both the Trial Court as well as the First Appellate Court by very well relying upon the evidence adduced by both sides as well as the legal position by way of citation given by both sides, had come to a right conclusion that the accused was guilty of the offence punishable under Section 138 of the N.I.Act and accordingly, awarded the punishment of two years imprisonment with compensation which is fully justifiable and therefore, it requires no interference from this Court. Learned counsel appearing for the complainant would further argue that, the High Court powers of revision is restricted and it cannot embark upon re-appreciation of the evidence. In support of the said proposition, the complainant counsel relied upon the judgement in 1975 (4) SCC 649 [Duli Chand vs. Delhi Administration].
22. I have considered the said submissions made in detail by both sides through their respective counsel and perused the entire materials placed before this Court.
23. In so far as the appreciation of evidence by the Trial Court is concerned, I have gone through the entire judgement of the Trial Court. It is the definite case of the complainant that, there had been business transaction between the complainant and the accused and after negotiation it was agreed upon to purchase the yarn from the accused by the complainant and the accused also agreed upon to supply the yearn as requested by the complainant. It is also the definite case of the complainant that in order to purchase the yarn a sum of Rs.12,70,080/- was paid by way of two demand drafts dated 25.04.2012 with D.D.No.929131 and 929132 for a sum of Rs.5 Lakhs and a sum of Rs.7,70,080/- respectively.
24. Further definite case of the complainant was that, a further sum of Rs.12,70,080/- was also paid by way of cash. In this regard, the evidence projected by both sides can be looked into. Pursuant to the payment of the amount, on the very same day, the accused had issued two invoices in the name of Sreenivasa Yarn Traders and in the name of Seenivasa Yarn Traders. But the fact remains that both the invoices were issued by the accused only on 25.04.2012 in TIN No.33732421101 with CST No.606081. Though the TIN number and CST number are one and the same however, in one invoice it stands in the name of Sreenivasa Yarn Traders and the another invoice stands in the name of Seenivasa Yarn Traders. Therefore, it is not very difficult to ascertain that, both Sreenivasa Yarn Traders and Seenivasa Yarn Traders are one and the same as the TIN number and CST number are one and the same.
25. On the very same day, i.e., on 25.04.2012, two purchase orders have been issued by the complainant, namely, TWOWIN Exports to and in favour of Sreenivasa Yarn Traders and Seenivasa Yarn Traders. In so far as the purchase orders issued in the name of Sreenivasa Yarn Traders, the amount paid by way of demand draft for a sum of Rs.12,70,080/- has been mentioned and the quantity of yarn was mentioned as 112 bags which is equivalent to 6720 kilograms. In another purchase order issued in the name of Seenivasa Yarn Traders the very same quantity of yarn required to be supplied with an endorsement, cash paid for a sum of Rs.12,70,080/- with a specific request that lot jdpahf nlyptup juTk; '. Apart from these documents, there was no other documents to show the said transaction except the Ex.D1, dated 28.04.2012 which was marked through D.W.1. In the said document, it is mentioned as Seenivasa Yarn Traders No.09, dated 28.04.2012 to M/s. TWOWIN EXPORTS, quantity 6720Kg. and it is signed for Seenivasa Yarn Traders by the accused.
26. The said Ex.D1, document does not carry any acknowledgement except the signature under the heading receiver's signature. Who had signed in the receiver's signature colonum has not been explained by the accused.
27. In order to appreciate the said evidence, the learned Trial Court Judge has taken best efforts to consider the evidence and he has come to a right conclusion by giving his reasoning. In this regard, the learned Judge of the Trial Court has given the following reasons in his judgement which are necessary to be extracted herein for easy reference.
",t;tHf;fpy; vjphpfs; jug;gpy; Kjy; vjphp epWtdj;jpd; bgaupy; nfl;g[f; fhnrhiy \ykhf +.12/70/080_- bgw;Wf; bfhs;sg;gl;Ls;sJ vd;gij xg;g[f;bfhs;sg;gl;L nkw;go bjhiff;fhd E}iy Kjy; vjpup epWtdk; thjp epWtdj;jpw;F 28.04.2012-Mk; njjp E}iy bfhLj;Jtpl;ljhft[k;/ mt;thW E}y; bfhLf;fg;gl;ljw;fhd Mtdk; v.rh.M.1 vd;Wk;/ vjpupfs; jug;gpy; nkw;go nfl;g[f; fhnrhiyfs; \yk; bgwg;gl;l bjhiff;fhd E}iy nfl;g[f; fhnrhiyfs; \yk; bgwg;gl;l bjhiff;fhd E}iy bfhLj;Jtpl;ljhf thjk; itf;fg;gl;Ls;sjpy; Kjy; vjpup epWtdj;jhy; nkw;go E}iy nfl;g[f; fhnrhiy \yk; bgw;w bjhiff;F bfhLj;Jtpl;lhu;fsh vd;gJ Fwpj;J Muha;e;jjpy; nfl;g[f; fhnrhiy \yk; nkw;go bjhifia bgw;Wf; bfhz;ljhf vjpupfs; jug;gpy; xg;g[f;bfhz;Ls;s epiyapy; nkw;go bjhiff;fhd E}iy bfhLj;Jtpl;ljhf vjpupfs; jug;gpy; thjk; itf;fg;gl;Ls;sjhy; mt;thW E}y; thjp epWtdj;jpw;F bfhLf;fg;gl;Ltpl;lJ vd;gij ep+gpf;f ntz;oa Rik Kjy; vjpup epWtdj;ij rhu;e;jJ vd;nw ,e;ePjpkd;wk; fUJfpwJ. vjpupfs; jug;gpy; v.rh.M.1-d; \yk; nkw;go E}iy bfhLj;Jtpl;ljhf Twg;gLk; epiyapy; ,t;tHf;fpy; tHf;F Kd;dwptpg;ig bgw;Wf;bfhz;lt[ld; nkw;go nfl;g[f; fhnrhiyfs; \yk; bgw;w bjhiff;fhd E}iy v.rh.M.1-d; \yk; thjp epWtdj;jpw;F bfhLj;Jtpl;nlhk; vd Twp jdf;F fpilj;j Kjy; re;ju;g;gj;jpnyna gjpy; VJk; mspf;ftpy;iy vd;gjw;F vjpupfs; jug;gpy; vt;tpj tpsf;fKk; bfhLf;fg;gltpy;iy. nkYk; thjp jug;g[ rhl;rpahd th.rh.1-ia vjpupfs; jug;gpy; KGikahf FWf;F tprhuiz bra;ag;gl;lnghJ Tl v.rh.M.1-d; \yk; 28.04.2012-Mk; njjpapy; E}iy thjp epWtdj;jpw;F bfhLj;Jtpl;ljhf vt;tpj nfs;tpa[k; nfl;fg;gltpy;iy. mt;thW nfs;tpfs; vJt[k; nfl;fg;glhky; itj;jpUe;Jtpl;L me;j Mtzj;ij filrp tiu th.rh.1-,lk; fhl;lhkYk; btspapy; brhy;yhkYk; itj;jpUe;J vjphpfs; jug;g[ rhl;rpahd v.rh.1-d; \yk; jhf;fy; bra;jjw;fhd fhuzk; vd;d vd;gJ Fwpj;J vjphpfs; jug;gpy; vt;tpj tpsf;fKk; bfhLf;fg;gltpy;iy. nkw;go Mtzj;ij thjp jug;gpy; Vw;Wf; bfhs;shky; kWf;fg;gl;Ls;sd. ,e;epiyapy; thjp epWtdj;jpy; ahuplk; E}y; bfhLf;fg;gl;L mjw;F mj;jhl;rpahf v.rh.M.1-.,y; ifbaGj;J bgwg;gl;lJ vd;W vjpupfs; jug;gpy; Fwpg;gpl;L rhl;rpak; mspf;ftpy;iy. nkYk; me;j E}iy bgw;Wf; bfhz;l egiua[k; vjpupfs; jug;gpy; miHj;J rhl;rpahf tprhupj;Jf;bfhs;stpy;iy. nkYk; Kjy; vjphp epWtdj;jpd; \yk; mt;thW E}y; bfhLf;fg;gl;ljw;fhd jpdrup gjpntL kw;Wk; ,Ug;g[ gjpntL Mfpatw;iw jhf;fy; bra;J E}y; bfhLj;jjw;fhd fzf;ifa[k;/ vjpupfs; jug;gpy; jhf;fy; bra;ag;glhjjhy; cz;ikapy; v.rh.M.1 MdJ 28.04.2012-Mk; njjp thjp epWtdj;jpw;F E}y; bfhLf;fg;gl;ljw;fhd mj;jhl;rp jhd; vd;gij rhl;rpa rhd;whtz';fs; \yk; ep+gpf;f Kjy; vjpup epWtdk; ep+gpf;f jtwptpl;lbjd;Wk;/ mjdhy; Kjy; vjpup epWtdk; TWtJ nghd;W thjp epWtdj;jplkpUe;J nfl;g[f; fhnrhiyfs; \yk; bgwg;gl;l +.12/70/080/-ia bgw;Wf; bfhz;ljw;F epWtdj;jpw;F Kjy; vjpup epWtdk; E}y; bfhLf;ftpy;iy vd;nw ,e;ePjpkd;wk; Kot[ bra;fpwJ.
16. ,t;tHf;fpy; Kjy; vjpup epWtdk; nfl;g[f; fhnrhiy \yk; bgw;w bjhiff;fhd E}iy thjp epWtdj;jpw;F bfhLf;ftpy;iy vd;w epiyapy; nkw;go bjhif +.12/70/080/-ia Kjy; vjpup epWtdk; thjp epWtdj;jpw;F rl;lg;go brYj;j ntz;oa[s;sJ vd;nw ePjpkd;wk; fUJfpwJ. nkw;go bjhif rl;lg;goahf bgw;Wf; bfhz;l bjhifahf njhd;Wtjhy; mij thjpf;F bjhifahfnth/ my;yJ xg;g[f;bfhz;lgo E}yhfnth/ thjp epWtdj;jpw;F jpUg;gpf; bfhLf;f ntz;oa rl;lg;goahd flika[k;/ bghWg;g[k; vjpupfSf;F cs;sbjd;nw mwpa KofpwJ. ,e;epiyapy; thjp jug;gpy; nkw;go bjhifia jpUg;gpr; brYj;Jk; tpjkhfj; jhd; Kjy; vjpup epWtdj;jpd; ngupyhd xU fhnrhiyia 04.05.2012-Mk; njjpapl;L thjp epWtdj;jpw;F bfhLf;fg;gl;ljhf brhy;yg;gLk; thjp jug;g[ Tw;W Vw;g[ilajhfnt njhd;WfpwJ/ nkYk; nkw;go fhnrhiyahdJ nfl;g[f; fhnrhiy \yk; Kjy; vjpup epWtdk; bgw;Wf; bfhz;l bjhiff;F E}y; bfhLf;fhjjhy; nkw;go rl;lg;goahd flid jpUg;gpr; brYj;Jtjw;nf Kjy; vjpup epWtdj;jhy; nkw;go +.12/70/080-f;F thjpf;F fhnrhiy tH';fg;gl;Ls;sJ vd;nw ,e;ePjpkd;wk; Kot[ bra;fpwJ.
17. ,t;tHf;fpy; thjp epWtdj;jplkpUe;J nfl;g[f; fhnrhiy \yk; Kjy; vjpup epWtdk; bgw;Wf; bfhz;l +.12/70/080_-ia rl;lg;go jpUg;gpr; brYj;j ntz;oajw;fhf nkw;go bjhiff;fhd fhnrhiyia Kjy; vjpup epWtdj;jhy; bfhLf;fg;gl;lbjd Kot[ fhzg;gl;Ls;s epiyapy; nkw;go bjhifia jpUg;gpr; brYj;jf; nfhhp thjp epWtdj;jhy; vjpupfSf;F bfhLf;fg;gl;l/ tHf;F Kd;dwptpg;ig bgw;Wf; bfhz;l vjpupfs; j';fSf;F tH';fg;gl;l Kjy; re;ju;g;gj;jpnyna nkw;go bjhiff;fhd E}iy 28.04.2012-Mk; njjp thjp epWtdj;jpw;F rg;is bra;Jtpl;ljhfnth mjw;F thjp epWtdj;jhy; tH';fg;gl;l blyptup ryhd; jhd; v.rh.M.1 vd Fwpg;gpl;L gjpy; mwptpg;g[ vJt[k; bfhLf;fg;gltpy;iy. nkYk; ,d;Wtiu vd;d fhuzj;jpdhy; thjp jug;gpy; bfhLf;fg;gl;l tHf;fwp"u; mwptpg;g[f;F gjpy; mwptpg;g[ vjpupfshy; bfhLf;fg;gltpy;iy vd;gjw;fhd fhuzk; vija[k; ,e;ePjpkd;wj;jpw;F bjuptpf;ftpy;iy. ,e;epiyapy; nfl;g[f; fhnrhiy \yk; Kjy; vjpup epWtdj;jhy; brYj;jg;gl;l +.12/70/080_-ia Kjy; vjpup epWtdKk; mjd; cupikahsuhd 2-Mk; vjpupa[k; nru;e;J thjp epWtdj;jpw;F rl;lg;go jpUk;g brYj;j ntz;oapUe;Jk; mjw;fhf Kjy; vjphp epWtdj;jhy; fhnrhiy bfhLf;fg;gl;L rl;lg;goahd fhyj;jpw;Fs; jpUg;gpr; brYj;jhjhy; vjphpfs; ,UtUk; nkw;go bjhifia bghWj;J khw;WKiw Mtzr; rl;l;j;jpd; go jz;of;fjf;f Fw;wk; g[hpe;Js;shu;fs; vd ,;e;ePjpkd;wk; fUJfpwJ.."
28. The Trial Court after having concluded that, in view of the payment of Rs.12,70,080/- by way of two demand drafts since has been made to the accused and the same was received by the accused for which there had been no proof of supply of the yarn, it had come to the right conclusion that in order to repay the said amount only which is legally enforceable debt, the accused issued the cheque and therefore, since the said cheque was returned or dishonoured for the reason insufficiency of funds, the accused had committed the offence punishable under Section 138 of the N.I.Act as the accused did not even choose to reply to the statutory notice issued by the complainant under Section 138(b) of the N.I.Act.
29. In so far as the other claim made by the complainant for payment of Rs.12,70,080/- by way of cash on 25.04.2012 itself is concerned, the Trial Court after having appreciated the evidence, had come to a right conclusion that there had been no receipt to show on the side of the complainant for making such payment by way of cash as no document had been filed by the complainant's side to show its accounts that such amount had been paid to the accused by way of cash and accordingly, the Trial Court concluded that there had been no legally enforceable debt payable by the accused to the complainant for the said claim of Rs.12,70,080/- claimed to have been paid by the complainant to the accused by way of cash payment.
30. In this regard the reasoning and the conclusion arrived at by the Trial Court at paragraph 20 of the judgement is extracted hereunder for easy reference:
",t;tof;fpy; 2-Mk; thjp jug;gpy; nuhf;fkhf thjpaplkpUe;J njhif ngw;Wf;nfhs;sNt ,y;iy vd;w thjk; itj;jpUf;Fk; epiyapy; thjp jug;gpy; nkhj;jk; E}y; thq;Ftjw;fhf Nfl;Gf; fhNrhiyahfTk; nuhf;fkhfTk; Nrh;;j;J 25.04.2012-Mk; Njjpapy; &.25,40,160/- ia vjphpfsplk; nfhLj;jjhf thjk; itj;jpUf;Fk; epiyapy; th.rh.1 jd; FWf;F tprhuizapy; thjp epWtdj;jpy; xU tUlj;jpw;F Rkhu; 15 NfhbapypUe;J 20 Nfhb tiu tpahghu Vw;Wkjp elf;Fk; vd;Wk; epWtdj;jpd; tuT nryT Fwpj;J Mbl; nra;J tzpfthpj;Jiuapy; fzf;F rku;g;gpf;fg;gLk; vd;why; rupjhd; vd;Wk; fzf;fpy; fhkpf;fhky; ve;j nghUNsh njhifia epWtdj;jpy; ,y;iy vd;why; rupjhd; vd;W xg;Gf;nfhz;L rhl;rpak; mspj;Js;sij ghh;f;Fk;NghJ jdJ tuT nryT Fwpj;J Kiwahd fzf;F gjpNtLfs; gad;gLj;jg;gl;L te;jjhf mwpa KbfpwJ. ,t;thwhd epiyapy; Nkw;gb 25.04.2012-Mk; Njjpapy; E}y; thq;f nuhf;fkhf nfhLj;j njhif &.12,70,080/ - thjp epWtd fzf;fpy; ,Ug;gpy; ,Ue;jJ vd;gjw;F thjp epWtd fzf;Ffs; vJTk; ,t;tof;fpy; jhf;fy; nra;ag;gljhjy; Nkw;gb nuhf;fkhf thjpahy; nfhLf;fg;gl;ljhf nrhy;yg;gLk; Nkw;gb njhif thjp epWtd fzf;fpy; ,Ue;jJ vd;gij Vw;Wf; nfhs;s ,aytpy;iy vd;Nw ,e;ePjpkd;wk; fUJfpwJ. ,t;thW Nkw;gb njhif thjp epWtdj;jpy; ,Ue;jJ vd;gij thjp epUgpf;f jtwptpl;ljhy; Nkw;gb njhif &.12,70,080/ - E}y; thq;Ftjw;fhf nuhf;fkhf Kjy; vjphp epWtdj;jpw;F nfhLf;fg;gl;lJ vd;gJ Vw;Gilajhf Njhd;wtpy;iy vd;gjhy; Kjy; vjphp epWtdk; thjp epWtdj;jpw;F Nkw;gb rl;lg;gb nfhLf;f Ntz;ba fldhfNth my;yJ E}yhfNth ,y;iy vd;Nw ,e;ePjpkd;wk; fUJfpwJ. ,t;thW rl;lg;gb thjp epWtdj;jpw;F Kjy; vjphp epWtdk; nfhLf;f flikg;gl;bUf;ftpy;iy vd;w epiyapy; mf;flid jpUg;gpr; nrYj;Jk; tpjkhf 2-Mk; vjphp jdJ jdpg;gl;l ngaupy; &.5 yl;rj;jpw;F xU fhNrhiyAk; &.7,70,000/-j;jpw;F kw;nwhU fhNrhiyAk; 11.05.2012-Mk; Njjpapy; nfhLj;jhh; vd;w $w;W Vw;Gilajhf Njhd;wtpy;iy vd;Nw ,e;ePjpkd;wk; fUJfpwJ. ,t;thwd epiyapy; Kjy; vjphp epWtdk; thjp epWtdj;jpw;F E}y; toq;Ftjw;fhf nuhf;fkhf &.12,70,080/ - ngw;Wf; nfhs;sg;gl;lJ Fwpj;Jk; mjw;fhf 2-Mk; vjphp ,uz;L fhNrhiyfs; toq;fp khw;W Kiw Mtzr;rl;lj;jpd; gb 2-Mk; vjpup Fw;wk; Ghpe;Js;shu; vd;gij thjp jug;G rhl;rpa rhd;whtzq;fs; *yk; ep&gpf;f jtwptpl;lhh;fs; vd;Nw ,e;ePjpkd;wk; fUJfpwJ."
31. In so far as the compensation aspect is concerned, the Trial Court has given its reasoning at paragraph 21 of the judgement which reads thus:
",t;tof;fpy; thjp jug;G rhl;rpak; kw;Wk; thJiuapy; Kjy; vjpphp epWtdk; Nfl;Gf; fhNrhiyahf &.12,70,080/-ia E}y; toq;Ftjw;fhf 25.04.2012-Mk; Njjp ngw;Wf; nfhz;Lk; xg;Gf;nfhz;lgb E}y; nfhLf;fhjjhy; thjp epWtdk; E}iy ngw;Wf; nfhz;l gpwF Jzpfis jahhpg;gjw;fhf Vw;ghLfs; Fwpj;J gy;NtW gzpfs; nra;J itj;jpUe;jd vd;Wk; mt;thW E}y; nfhLf;fhjjhy; thjp epWtdj;jpw;F Vuhskhd ,og;G Vw;gl;Ltpl;ljhfTk; mjdhy; thjp epWtdk; 3-Mk; egh;fSf;F nfhLj;j thf;FWjpfis epiwNtw;w Kbahky; thjp epWtdj;jpd; ew;ngaUf;F fsq;fk; Vw;gl;Ltpl;ljhfTk; mjdhy; thjp epWtdj;jpw;F jFe;j e~;l <Lk; toq;f Ntz;Lnkd vLj;Jiuj;J thjplg;gl;ljpy; Kjy; vjphp epWtdk; 25.04.2012-Mk; Njjpapy; Nfl;Gf; fhNrhiy %ykhf &gha; 12,70,080/-ia ngw;Wf; nfhz;L mjw;fhd E}iy nfhLf;ftpy;iy vd jPh;T fhzg;gl;Ls;s epiyapy; Nkw;gb njhifia ngw;Wf; nfhz;l Kjy; vjphp epWtdk; E}y; nfhLf;fhjjhy; thjp epWtdk; Milfs; jahhpj;J tpw;gid nra;jtw;fhd tha;g;gpy;yhky; Ngha;tpl;lJ vd;Wk; Nkw;gb njhifahdJ fle;j 3 Mz;LfSf;F Nkyhf Kjy; vjphp epWtdj;jpy; itj;J tpahghuk; nra;J tUk; epiyapy; Nkw;gb njhifahdJ fle;j 3 Mz;LfSf;F Nkyhf Kjy; vjphp epWtdj;jpy; itj;J tpahghuk; nra;J tUk; epiyapy; Nkw;gb njhifia thjp epWtdk; tpahghuj;jpw;F gad;gLj;jpapUf;Fk; gl;rj;jpy; Nkw;gb njhifapy; ,uz;L klq;F mstpw;F thjp epWtdk; njhif rk;ghj;jpUg;gjw;fhd tha;g;Gs;sJ vd;Wk; Mdhy; vjphpfspd; nrayhy; Nkw;gb njhif thjp epWtdj;jpw;F ,og;G Vw;gl;Ls;sJ vd;gij Vw;Wf; nfhs;sf;Toajhf Njhd;WtjhYk; Kjy; vjphp epWtdk; chpikahsh; epWtdk; vd;gjhYk; vjphpfs; ,UtUk; Nrh;e;J thjp epWtdj;jpw;F ,og;gPlhf &.25,40,160/- ia nrYj;jp itf;f flikg;gl;lth;fs; vd;Wk; ,t;tof;F epYitapy; ,Ue;j rkaj;jpy; vjphpfs; ,UtUk; Nrh;e;J thjp epWtdj;jpw;F ,og;gPlhf &.25,40,160/- ia nrYj;jp itf;f flikg;gl;lth;fs; vd;Wk; ,t;tof;F epYitapy; ,Ue;j rkaj;jpy; vjphpfs; kPJ njhlug;gl;l jpUg;ih; kj;jpa Fw;wg;gphpT Fw;w vz;.17/2012- y; vjphpfsplkpUe;J ifg;gw;wg;gl;l &.2,08,110/- ia thjp epWtdk; Vw;fdNt ePjpkd;wj;jpypUe;J ngw;Wf; nfhz;Ltpl;ljhYk; mt;tof;Ff; fhNrhiy Nkhrb tof;Fld; njhlh;Gila tof;F vd;gjhy; Nkw;gb nkhj;j ,og;gPl;Lj; njhifapypUe;J thjp epWtdk; Vw;fdNt ngw;Wf;nfhs;sg;gl;l &.2,08,110/- ia fopj;J kPjKs;s &.23,32,050/- ia thjp epWtdk; vjphpfsplkpUe;J e~;l <lhf ngwj; jFjpAs;snjd;Wk; vdNt vjphpfs; ,UtUk; jdpj;jdpahfNth Tl;lhfNth thjp epWtdj;jpw;F e~;l <lhf &.23,32,050/- ia nrYj;jp itf;f flikg;gl;lth;fs; vd;Nw F.tp.K.r. 357(3)-d; fPo; jPh;khdpf;ffgLfpwJ."
32. When this judgement was assailed before the First Appellate Court, the legal plea now raised by the accused before this Court in this revision, had also been raised before the said First Appellate Court including the plea that unregistered partnership firm cannot maintain complaint. The said aspect had been considered by the First Appellate Court in detail and the First Appellate Court after having considered the evidence adduced by both sides as well as the legal precedents in this regard, which were quoted before the First Appellate Court, had come to the conclusion that the conviction and sentence made by the Trial Court was sustainable and accordingly, the First Appellate Court dismissed the appeal.
33. In so far as the said conclusion arrived at by the Trial Court as confirmed by the First Appellate Court is concerned, this Court, after having gone through the evidence, is of the view that there can be no special reason available for this Court, sitting under revisional jurisdiction, to interfere with the said reasoning given by both the Trial Court as well as the First Appellate Court. In this regard, the evidence of the accused, who deposed before the Trial Court as D.W.1 can be taken into account. In order to appreciate the evidence of the D.W.1, the following evidence of him is extracted for easy reference.
Kjy; vjphp epWtdkhd rPdpthr ahu;d; onulh;]; epWtzj;jpd; chpikahsuhf ,Ue;J elj;jp tUfpNwd;. ehd; kpy;fspypUe;J E}y;fis thq;fp mitfis fk;ngdpf;Sf;F mDg;gp tpahghuk; nra;J tUfpNwd;. 25.04.2012-k; Njjp Nkw;gb vjphpghh;b fk;ngdpapd; Nkyhsh; ,t;tof;F thjp tbNty; vd;dplk; 25-v];.]g; ahu;d; 6700 fpNyh Ntz;Lk; vd Nfl;lhh;. mg;NghJ mit vd;dplk; cs;sJ vd;Wk; mjw;fhf gu;Nr]; Mu;lu; nfhLf;Fk;gb Nfl;Nld;. 6700 fpNyhTf;F mNj Njjpapy; tbNty; vdf;F gu;Nr]; Mu;lu; nfhLj;jhu;.
Thjp epWtdj;jpy; Jiurhkp kfd; tbNty; vd;gtu; Nkyhd;ik nghWg;gpypUe;J thjp epWtdj;ij ftdpj;J tUfpwhh; vd;why; rhpjhd;. thjp epWtdj;Jld; vd;Dld; tuT nryT eilngw;wJ Fwpj;J Nkw;gb tbNtYTf;Fk; njhpAk; vd;why; rupjhd;.
bb vz;.001308 vz;Zld; 25.04.2012-k; Njjpapl;l Nfl;l fhNrhiy Kyk; &.12>09>600/-ia ehd; thjpapd; epWtdj;jplkpUe;J ngw;Wf; nfhz;Ls;Nsd; vd;why; rupjhd;. mt;thW Nkw;gb njhifia ngw;Wf;nfhz;L njhif ngw;Wf;nfhz;ljhf Kj;jpiu itj;J ehd; ifnaOj;J Nghl;Lf;nfhLj;Njd; vd;why; rupay;y. tof;F Kd;dhptpg;G te;jJ. Mij ed;whf gbj;Jg; ghh;j;Njd;. Nkw;gb mwptpg;gpy; th.rh.M.2 Kjy; 4 tiuahd Mtdq;fs; gw;wp 2 gu;Nr]; Mu;lu;fs; 2 ,d;tha;];fs; gw;wp nrhy;yg;gl;Ls;snjd;why; rupjhd;. Nkw;gb tof;fwpQh; mwptpg;Gf;F ehd; vt;tpj gjpy; mwptpg;G nfhLf;ftpy;iy. me;j mwptpg;gpy; nrhy;yg;gl;l rq;fjpfs; mizj;Jk; cz;ikahditfs; vd;gjhy; jhd; mitfis kWj;J ehd; gjpy; mwptpg;G nfhLf;ftpy;iy vd;why; rupay;y. th.rh.M.6 Kjy; 8 tiuahd 3 fhNrhiyfspYs;s ifnaOj;Jf;fs; vd;DilaJjhd;.
Thjp epWtdk; vd;dplk; E}y; Nfl;ljw;F ehd; gzk; thq;fpf; nfhs;stpy;iy. Thjp epWtdj;jpypUe;J ehd; E}y; rg;is nra;Ak;NghJ thjp epWtdj;jpypUe;J vdf;F E}Yf;F gzk; tuNtz;ba #o;epiyapy; nghWg;Gf;fhf fhNrhiyfis Vd; gu;Nr]; Mu;lu;j;jpw;F nfhLf;fNtz;Lnkd;why; gu;Nr]; Mu;lu; thjp epWtdk; nfhLf;Fk;NghJ nghWg;Gf;fhf ntw;Wf; fhNrhiyfs; thq;fp itj;Jf; nfhs;tJjhd; fhuzNk jtpu NtW fhuzq;fs;,y;iy. ehd; nrhy;Yk; fhuzk; eilKiwapy; xU rhjhuz kdpjdhYk; Vw;Wf; nfhs;sf;$ba fhuzk; my;y vd;why; rupay;y.
vdJ jug;G tof;fpy; cz;ik ,y;yhjjhy; xt;nthU epiyapYk; Kd;Df;Fg; gpd; Kuzhf nra;jpfis khwp khwp $wp tUfpNwd; vd;why; rupay;y. vd; ngaupYk; Fkhurhkp ngaupYk; thjp epWtdk; jpUg;g+h; kj;jpa Fw;w Gydha;T gpuptpy; Gfhh; nfhLj;jjpy; ehDk; FkhurhkpAk; Kd; [hkPd; Ntz;b nrd;id cau;ePjpkd;wj;jpy; Fw;w gytif vz;.12234/2012-y; Kd; [hkPd; Nfl;L kD jhf;fy; nra;Njhk; vd;why; rupjhd;. me;j kDtpd; efy; vd;dplk; fhl;lg;gLtJjhd;. mJ th.rh.M.16 MFk;. Nkw;gb Mtzk; Gifg;gl efy; vd;Wk; mJ FwpaPL nra;a ,ayhnjd;Wk; vjpup jug;gpy; Ml;Nrgid nra;ag;gl;lJ. Ml;Nrgid Fwpj;J tprhuizapd; NghJ guprPypf;f;ggLk;. Nkw;gb kDthdJ cau; ePjpkd;wj;jpy; 21.05.2012-k; Njjpad;W jhf;fy; nra;ag;g;lLs;snjd;why; mJ gw;wp Qhgfkpy;iy. Nkw;gb kDit jhf;fy; nra;arjw;fhd tptuq;fs; nrd;id tof;fwpQWf;F ehd; $wtpy;iy. VdJ jz;zp ghu;ldu; jk;gp Fkhurhkp $wpapUf;fyhk;. mtu; mt;thW mk;kDit vdf;fhfTk; Nru;e;J jhd; jhf;fy; nra;jpUe;jhh; vd;why; mJ gw;wp vdf;F njupatpy;iy. mjpy; [hkPd;nfhLf;f$lhJ vd;W ,ilkD jhf;fy; nra;ag;gl;lJ Fwpj;J vdf;F njhpahJ. mt;thW 21.05.2012-k; Njjpad;W nrd;id cau; ePjpkd;wj;jpy; jhf;fy; nra;Js;s gpiz kDtpy; thjp epWtdk; Nfhupa E}iy jahu; nra;J itj;jpUe;jjhfTk; Mdhy; thjp gu;Nr]; Mu;liu uj;J nra;J tpl;ljhfTk; E}iy thjpfSf;F toq;f jahuhf ,Ug;gjhfTk; Mdhy; thjpfs; kWj;Jtpl;ljhfTk; kDtpy; $wpAs;Nsd; vd;why; rupay;y. 28.04.2012-k; Njjpad;W E}iy v.th.rh.M.1-d; Kyk; nlyptup nfhLf;fg;gl;bUe;jhy; mt;thW nlyptup nfhLf;fg;gl;l tptuj;ijAk; mt;thW Kd; [hkPd; nfhLf;fg;gl;l kDtpy; Fwpg;gpl;bUg;Nghk; vd;why; rupay;y. v.th.rh.M.1 nlyptup ryhd; gpd;dpl;L tof;fpw;fhf jahupf;fg;gl;lJ vd;gjhy; jhd; mJ gw;wpa tptuj;ij Kd; [hkPdpy; nrhy;ytpy;iy vd;why; rupay;y. v.th.rh.M.1 MtdkhdJ rl;lg;gb Vw;Wf; nfhs;sj;jf;f Mtzky;y vd;why; rupay;y. ,t;tof;fpy; 27.7.12-k; Njjpad;W mDg;gpa tof;fwpQh; mwptpg;ig 30.07.2012-k; Njjpad;W ngw;Wf; nfhz;Nld; vd;why; rupjhd;.
34. The evidence of D.W.1 itself, as extracted herein above, would prove the case of the complainant to a considerable extent. As has been rightly pointed out by both the Trial Court as well as the Appellate Court, if at all the accused has a definite case to state that the yarn as demanded or as required by the complainant had been supplied by the accused on 28.04.2012 as claimed by him through Ex.D1, it is for the accused to prove that what was the acknowledgement for supply of the yarn on the side of the complainant and it must also have been stated by the accused at the earliest point of time when he received statutory notice under Section 138(b) of the N.I.Act from the complainant. The accused not stated anything about this defence theory except in his cross examination where he came forward to mark Ex.D.1. Moreover, if at all the entire yarn was supplied for the amount which the accused received by way of two demand drafts, the said position can very well be stated on receipt of the statutory notice by the accused by way of a reply. No prudent man would have been silent in receiving the said statutory notice from the complainant's side without giving the reply by stating all these aspects now has been stated by the accused at the trail stage. Therefore, the theory of defence cannot be taken into account.
35. It is the settled preposition that in cases under Section 138 of the N.I.Act, the complainant is always having initial statutory presumption under Section 139 and 118 of the N.I.Act. Once the execution of cheque as well as the signature is accepted by the accused, as he deposed before the Trial Court heavily, the initial presumption satisfactorily would go in favour of the complainant and therefore, the burden of rebuttal will stand transferred to the accused. It is the well settled preposition that statutory presumption under Section 138 and 118 of the N.I.Act is always a rebuttable presumption and in this regard if an acceptable rebuttal comes from the side of the accused, certainly such legal presumption will go and the burden will once again shift towards the complainant.
36. Here in the case in hand, the payment was made by way of demand drafts and the same was accepted by the accused. The only defence, though belatedly, taken by the accused is that, he had supplied the yarn on 28.04.2012 itself. If that being so, why the said position had not been explained or given by way of reply when he received the statutory notice from the complainant, has not been explained by the accused and therefore, this aspect of defence in the present circumstances of the case would be a fatal to the defence theory taken by the accused and therefore, the rebuttal come from this defence theory cannot be an acceptable rebuttal and therefore, it will no way shatter the statutory presumption which is already in favour of the complainant. Moreover, the said stand taken by the accused that he had supplied yarn for the amount paid by the complainant by way of demand drafts is factually incorrect as it has been rightly pointed out by the learned counsel for the complainant that, at the time when a criminal case for the alleged offence under Section 420 and 120(b) etc., was taken on file by the Central Crime Branch, Tiruppur, the accused had approached this Court by filing Crl.O.P.No.12234 of 2012 seeking for anticipatory bail. The learned counsel had produced the copy of the said petition which reads thus:
It is respectfully submitted that the defacto complainant originally issued the purchase order to the petitioners pursuant to that the petitioners invested the said amount and arranged the yarns as per the purchase order, thereafter the defacto complainant cancelled the purchase order. Now, the entire yarn is ready with the petitioners and they are ready to supply it but the defacto complainant refused the same. Suppressing the fact, the defacto complainant lodged a false complaint.
37. The said anticipatory bail petition was filed by the very same accused, only on his instructions the averments has been made, as set out above, in the said anticipatory bail petition. The averments made in the said petition would disclose that when he filed the said petition on 21.05.2012, before this Court, it was the stand of the accused that he was ready and willing to supply the yarn, which means that, the yarn had not so far, till such date supplied. When that being so, the Ex.D1, dated 28.04.2012 marked by the accused with the objection of the complainant before the Trial Court suggesting that 6720Kgs. of yarn had been supplied against the payment of Rs.12,70,080/- by way of two demand drafts of the complainant, is absolutely a false statement and therefore, based on such statement of Ex.D1, the accused cannot put a defence theory towards an acceptable rebuttal within the meaning of Section 139 and 118 of the N.I.Act. Therefore, it became crystal clear that the accused has not brought any rebuttal against the statutory presumption and therefore, this Court is of the considered view that the conclusion arrived at by both Trial Court as well as the First Appellate Court is fully justifiable.
38. Apart from this factual matrix and the decision arrived at by both courts, since certain legal grounds had been raised by the learned counsel for the accused, by relying upon the aforesaid judgements, the said issues can also be looked into in detail.
39. The learned counsel appearing for the accused raised the grounds that the unregistered firm cannot maintain a complaint, the complainant's firm itself is a agent and it cannot further delicate in the capacity as principal to any agent i.e., Power of Attorney Holder and therefore, the complaint is not maintainable. In respect of the role of the Power of Attorney Holder in the cases of private complaint especially under Section 138 of the N.I.Act the lead case is 2014 (11) SCC 790 [A.C.Narayanan vs. State of Maharashtra and another] where, the Honourable Apex Court, after having considered the issue in depth, has given the following findings and the legal proposition.
26) As noticed hereinabove, though Janki Vashdeo Bhojwani (supra), relates to powers of Power of Attorney holder under CPC but it was concluded therein that a plaint by a Power of Attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well settled position that criminal law can be put in motion by anyone [vide Vishwa Mitter (supra)] and under the Statute, one stranger to transaction in question, namely, legal heir etc., can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies [Vide Ashwin Nanubhai Vyas vs. State of Maharashtra (1967) 1 SCR 807]. Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the Court in order to prove the complaint, it is permissible for the Power of Attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power of attorney holder or legal representative(s) should have knowledge about the transaction in question so as to able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to above quoted reasons. Keeping these aspects in mind, in MMTC (supra), this Court had taken the view that if complaint is filed for and on behalf of payee or holder in due course, that is good enough compliance with Section 142 of N.I. Act.
27) The stand of the appellant in Criminal Appeal No. 73 of 2007 is that no complaint can be filed and no cognizance of the complaint can be taken if the complaint is by the power of attorney holder, since it is against Section 200 of the Code and deserves to be rejected. There is no dispute that complaint has to be filed by the complainant as contemplated by Section 200 of the Code, but the said Section does not create any embargo that the attorney holder or legal representative(s) cannot be a complainant.
28) The power of attorney holder is the agent of the grantor. When the grantor authorizes the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder and not by the attorney holder in his personal capacity. Therefore, where the payee is a proprietary concern, the complaint can be filed by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee, the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor, and the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. However, we make it clear that the power of attorney holder cannot file a complaint in his own name as if he was the complainant. In other words, he can initiate criminal proceedings on behalf of the principal.
29) From a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint underSection 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.
30) In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.
40. In respect of the further ground raised by the counsel for complainant that several cheques cannot be clubbed together in one single complaint is concerned, the learned counsel for the complainant relied upon the Division Bench judgement of this Court in Manjula's case cited supra [2006(5) CTC 303] where the Division Bench has held as follows:
13. The very object of Section 219 is to prevent miscarriage of justice by clubbing together a number of offences and making it impossible for the accused to defend them. Sections 219 and 220 Cr.P.C. lay down different and distinct exception to the general rule contemplated under Section 218 Cr.P.C. in framing charges. We are of the view that the number of three offences underlined in Section 219 of the Code cannot control Section 220(1) of the Code.
14. In the instant case, the offences committed by the same person in respect of 16 cheques must certainly be held to be part of the same transaction considering the purpose, the sequence, events, nature of the allegation, proximity of commission, unity of action etc. In such circumstances, it is easy to conclude that the offences under Section 138 of the Act in respect of those cheques can be held to be offences committed in the course of same transaction. Section 219 (1) Cr.P.C. refers to identical offences committed on different dates during a span of 12 months. It permits joinder of those charges provided they are offences of the same kind.
15. In these circumstances, we hold that Section 219(1) Cr.P.C. permits joinder of all charges provided they are offences of the same kind. We are also of the view that the number of transactions and the cheques issued prior to the issuance of the statutory notice under Section 138(b) of the Act could at best be considered as bundle of facts giving rise to a cause of action and that it is not a ground to quash the criminal proceedings against the drawer of the cheques. We further hold that if the offences are of the same kind, the number of transactions between the parties which culminated into issuance of the statutory notice is no ground to urge that under Section 219 Cr.P.C., the prosecution laid against the petitioner is not maintainable.
41. The another point raised by the accused side is that, when there had been already a complaint which was taken up for investigation by the police, invocation of the Section 138 of the N.I.Act would amount to double jeopardy and therefore, the complaint is not maintainable is concerned, the learned counsel for the complainant would rely upon 2012 (7) SCC 621 cited supra where the Honourable Apex Court has held as follows:
36. Same remained the position so far as the judgment in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr., (2011) 2 SCC 703, is concerned. It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit byArticle 20(2) of the Constitution and Section 300(1) Cr.P.C.
37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions ofSection 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed.
38. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.
39. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.
42. With regard to the another technical objection raised by the accused side that, under Section 69 of the Partnership Act, unregistered firm cannot maintain the complaint under Section 138 of the N.I.Act is concerned, the following judgement can be referred to:
2012 (4) L.W. 510 [M/s.Karthick & Co. rep.by its Manager vs M/s Vadivel Sizing & Weaving Mills Pvt. Ltd. And another] In the above circumstances, it is held that even if the complainant remains to be an unregistered firm, it is legally competent to lay complaint under Section 138 of the Negotiable Instruments Act.
43. In so far as the contention that when the company's name was not mentioned in the notice under Section 138 of the N.I.Act and only mentioned against the individual, unless it is mentioned that the individual was in full affair of the company/firm the complaint under Section 138 of the N.I.Act cannot be entertained is concerned, the following judgement was relied upon on the side of the complainant. 2015 (9) SCC 622 [Mainuddin Abdul Sattar Shaikh s. Vijay D.Salvi];
9. From a bare reading of Section 138 of the NI Act, the following essentials have to be met for attracting a liability under the Section. The first and foremost being that the person who is to be made liable should be the drawer of the cheque and should have drawn the cheque on an account maintained by him with a Banker for payment of any amount of money to another person from out of that account for discharge in whole or part, of any debt or other liability. We see that from the bare text of the Section it has been stated clearly that the person, who draws a cheque on an account maintained by him, for paying the payee, alone attracts liability.
10...
11. About the liability under Section 138 of the NI Act, where the cheque drawn by the employee of the appellant company on his personal account, even if it be for discharging dues of the appellant-company and its Directors, the appellant-company and its Directors cannot be made liable under Section 138. Thus, we observe that in the abovementioned case, the personal liability was upheld and the Company and its Directors were absolved of the liability. The logic applied was that the Section itself makes the drawer liable and no other person. This Court in P.J. Agro Tech Limited (supra) noted as under:
An action in respect of a criminal or a quasi-criminal provision has to be strictly construed in keeping with the provisions alleged to have been violated. The proceedings in such matters are in personam and cannot be used to foist an offence on some other person, who under the statute was not liable for the commission of such offence. (Emphasis Supplied) Going by the strict interpretation of the provision the drawer which in the present case is the respondent is liable under Section 138 of the N.I. Act.
44. With regard to the claim of double jeopardy is concerned, yet another judgement of this Court reported in 2007 (4) CTC 520 in the matter of V.Kannan and others vs. District Crime Branch, Namakkal can be pressed into service where the learned Judge has held as follows:
7. I have carefully considered the rival submissions put forth by the either side and also perused the entire materials available on record, including the complaint and the charge-sheet and other respective records.
8. The only contention raised in this matter is that already the informant has initiated proceedings under Section 138 N.I. Act and as such, he is not entitled to initiate further proceedings for the offence of cheating, as the same would amount to double jeopardy.
9. At the outset I am unable to accept the contention of the learned Counsel for the petitioners that the affected and aggrieved person, namely, the informant, can initiate both the proceedings, namely, under Sections 138 of the Negotiable Instruments Act as well as for the offence of cheating under Section 420 IPC.
10. The Hon'ble Supreme Court of India has held in Central Bank of India v. Saxons Farms reported in 1999 CRL.L.J. 4571 that,
13. Under Section 142 of the Act, Court can take cognizance of an offence punishable under Section 138 only on a complaint in writing made by the payee. Therefore, the police could not have started investigation under Section 138 of the Act. But if a cheque is dishonoured drawer may expose himself to prosecution under various sections of the Indian Penal Code which are cognizable and police could take up investigation. What was indicated in the notice was that in addition to the legal action by the appellant-bank under the Act, option was kept open for taking action against the respondents under the provisions of Indian Penal Code by informing the police. Therefore, the contention of learned Counsel for the respondents has no force.
A perusal of the complaint shows that there is an allegation to the effect that the accused had issued a post-dated cheque without making proper arrangements of funds into the credit of his account and as such it is clear that the accused had dishonest intention not to honour the amount even at the time of issuance of the cheque and the act of issuing the cheque which was dishonoured amounts to an offence of cheating. In this case, in the charge sheet also it is specifically mentioned that A-1 to A-5 in pursuance of common intention to cheat witnesses 1 to 6, A-3 issued a post-dated cheque, dated 03.04.2002 in favour of them for various amounts to the extent of Rs. 3,88,500/- to be drawn in the ICICI Bank, Namakkal, without sufficient fund. Therefore, there are enough materials available on record to implicate the petitioners, who have been arrayed as A-3 to A-5 for the alleged offence of cheating.
11. The Andhra Pradesh High Court in a Full Bench decision in a case in Opts Marketing Pvt. Ltd. v. State of A.P. 2001 Cr.L.J. 1489 has held as follows:
Even after introduction of Section 138 of the Negotiable Instruments Act, prosecution under Section 420, IPC., is maintainable in case of dishonour of cheques or post-dated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplier earlier, if the charge-sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonored, caused damage to his mind, body or reputation.
12. In view of the settled principle of law laid down by the Apex Court and the decision of the Full Bench of Andhra Pradesh High Court as cited supra and in view of the materials available on record, this Court is of the considered view that initiation of proceedings for the offence under Section 420I.P.C., against the petitioner in spite of the proceedings pending against the petitioner for the offence under Section 138 of the Negotiable Instruments Act would not amount to double jeopardy.
45. Therefore, the aforesaid principles, which have already been settled in a plethora of judgements of the Honourable Apex Court as well as this Court and other High Courts, would clearly envisage and emphasise that the present grounds urged by the accused side assailing the judgement of the Trial Court as well as the First Appellate Court, would not be sustainable. Moreover, both the Trial Court as well as the First Appellate Court, having appreciated the evidence in depth, has decided the issue in proper perspective. As has been discussed above, since the complainant has made out a case for the alleged offence under Section 138 of the N.I.Act by way of initial statutory presumption under Section 139 and 118 of the N.I.Act and the decree of proof of such presumption is only a preponderance of probability of the case and there had been no acceptable rebuttal from the accused side as the accused's only defence that it had already supplied the yarn on 28.04.2012 has been falsified by his own statement filed before this Court in the criminal original petition at the time of seeking anticipatory bail by the accused as has been extracted herein above, it can be safely concluded that the accused had not brought any acceptable rebuttal against the statutory presumption already build up in favour of the complainant. When that being the position, it cannot be construed that the judgement of both the Trial Court as well as the Appellate Court are erroneous and requires interference.
46. Moreover, the Trial Court has very carefully considered the two aspect of the case of the complainant, as, while accepting the legally enforceable debt only in respect of the payment made through demand draft, has rightly rejected the contention of the complainant in so far as it's claim for the payment of other amount i.e., another Rs.12,70,080/- by way of cash and in that regard the complainant's case was rejected by the Trial Court as confirmed by the First Appellate Court.
47. Moreover, since there was no appeal before the First Appellate Court by the complainant against the rejection of the said portion of the claim made by the complainant, as has been rightly held by the First Appellate Court, that issue need not be gone into once again. These aspects would go to show that, both courts have carefully considered the case in depth and had come to the right conclusion that the accused had been guilty of the offence punishable under Section 138 of the N.I. Act and accordingly had awarded punishment as provided under Section 138 of the N.I. Act for two years imprisonment and also awarded the compensation of double the amount of the cheque amount by deducting the sum which has already been recovered through other mode of litigation. Therefore, this Court finds that, both the courts below have given a justifiable reasoning and arrived at an acceptable conclusion in awarding punishment and sentence against the accused, which, in the considered opinion of this Court, does not warrant any interference that too by way of revision as both courts have, cogently given plausible reasons, for their conclusion.
48. For all these reasons, this Criminal Revision Case fails and therefore, the same is dismissed. The Trial Court is directed to initiate necessary action to execute the conviction and sentence imposed against the accused forthwith.
31.05.2018
Index :Yes/No
Speaking order/Non-speaking order
smi
To
1.The I Additional District
and Sessions Judge,
Tirupur.
2.The Judicial Magistrate-II,
Tiruppur.
3. The Public Prosecutor,
High Court, Madras.
R.SURESHKUMAR, J.
smi
Pre-Delivery Order in
Crl. R.C No.5 of 2017
31.05.2018