2015 (2) TMI 1370 - HC - Indian Laws

Dishonor of Cheque - legally enforceable debt or liability or not - acquittal of the accused - complaint was properly presented and prosecuted or not? - HELD THAT - The Power of Attorney Holder who presented the complaint in his sworn statement did not utter anything as to how he acquired the knowledge about the transaction. Verifying the complainant and swearing to an affidavit in the capacity of legal consultant and Power of Attorney does not necessarily mean that he has witnessed the transaction in due course in the capacity of agent or possess due knowledge of the transaction. In the absence of specific assertion in this regard, in the complaint and his sworn statement placed by way of affidavit, the court is under no obligation to draw favorable presumption about the competency of the deponent of the affidavit. That vitiates the very cognizance taken by the Magistrate and issue of process ordered. The cheque is issued by the accused in respect of the loan availed by her husband. The hire purchase loan agreement is not produced in evidence. The copy of the hypothecation agreement deed authorizes the payee for presentation of the postdated cheques issued towards installment payments of the loan amount. That being so, it is clear that the cheque in question was taken as security to the loan amount which had to be paid in installments - There is no evidence from his side about the actual amount due after the vehicle in question was seized. Basic requirement of offence under Section 138 of the N.I. Act, is, the Cheque ought to have been issued for discharge in whole or in part of any debt or other liability, but that is not established by the complainant. It needs to be asserted that the case of the appellant fails for another reason also i.e. not making out a case for an offence punishable under Section 138 of N.I. Act. and the impugned judgment does not call for interference - Appeal dismissed.

Summary

Issues Involved:
1. Whether the complaint was properly presented and prosecuted.
2. Whether the accused issued the cheque towards a 'legally enforceable debt or liability'.

Issue-Wise Detailed Analysis:

1. Whether the complaint was properly presented and prosecuted:

The complaint was presented by I.B. Venkatesh, the Legal Consultant and Power of Attorney Holder of the company, while the evidence was adduced by G. Krishnamurthy, Field Executive and Power of Attorney Holder of the complainant. The learned Magistrate dismissed the complaint on several grounds, including the non-production of the original General Power of Attorney (GPA) and the lack of specific authorization for the complainant to file the complaint. The Magistrate also noted that the GPA holder did not provide evidence of his employment with the complainant's company or the original GPA executed in favor of Mr. Venkatesh.

The appellant argued that the trial Court gave undue weight to the absence of the original GPA, stating that the complainant, a non-banking public limited finance institution, often prosecutes similar complaints in various courts and cannot produce the original GPA in each case. The appellant cited precedents, including a judgment from the High Court of Karnataka (2006 (2) KCCR 1155), which held that authorization to file a complaint on behalf of a company is not required.

The Supreme Court in A.C. Narayanan Vs. State of Maharashtra (2013 AIR SCW 6807) clarified that filing a complaint under Section 138 of the N.I. Act through a power of attorney is legal and competent, provided the power of attorney holder has witnessed the transaction or possesses due knowledge regarding the transaction. The power of attorney holder must explicitly assert their knowledge in the complaint. In this case, the power of attorney holder did not provide specific assertions about their knowledge of the transaction, which vitiated the cognizance taken by the Magistrate and the issue of process ordered.

2. Whether the accused issued the cheque towards a 'legally enforceable debt or liability':

The accused issued a cheque for Rs. 60,000, which was returned due to insufficient funds. The complainant alleged that the cheque was issued towards the outstanding loan amount for a Tata Tipper vehicle. The trial Court found that the vehicle, subject to a hire purchase agreement, was seized under a hypothecation agreement, and thus, the complainant could not invoke Section 138 of the N.I. Act.

The appellant argued that the cheque was issued towards the outstanding loan amount and that there is no bar to invoking the N.I. Act despite the availability of a civil remedy. However, the trial Court noted that the hire purchase agreement ended when the vehicle was seized and that the complainant did not inform the accused about the sale of the vehicle or the sale price. The Court also noted that the cheque was a post-dated cheque filled at a later point in time and that there was no notice issued to the accused for repayment of the outstanding debt.

The Court referenced several judgments, including Sudha Beevi Vs. State of Kerala (2004 Crl.J. 3418), which held that once a hire purchase agreement is determined by the seizure of the vehicle, the cheques given as security become instruments without consideration. The Supreme Court in M/s. Indus Airway Pvt. Ltd. Vs. M/s. Magnum Aviation Pvt. Ltd. (2014) 12 SCC 539, held that post-dated cheques issued as advance payment cannot be considered towards discharge of legally enforceable debt or liability.

In this case, the complainant failed to establish that the cheque was issued for the discharge of a legally enforceable debt or liability. The affidavit evidence of PW-1, who joined the company after the loan transaction, did not provide material particulars about the transaction or the current status of the vehicle. The complainant also did not produce the hire purchase loan agreement or provide evidence of the actual amount due after the vehicle was seized.

Conclusion:

The appeal was dismissed as the complaint was not properly presented and prosecuted, and the complainant failed to establish that the cheque was issued towards a legally enforceable debt or liability. The impugned judgment did not call for interference.