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2017 (4) TMI 672 - HC - Indian LawsPower to file a Complaint under NI act - whether Power of Attorney Holder and a Special Power of Attorney Holder can file a Complaint on behalf of the Complainant? - Held that - In the instant case on hand, before the trial Court on 06.02.2014 the Power of Attorney Agent and Manager of the Appellant /Complainant s Firm was examined as P.W.1 and Exs.P1 to P7 were marked. The Learned Judicial Magistrate, Fast Track Court No.1, Erode had opined that a prima facie case was made out as against the Accused (Respondent) under Section 138 of the Negotiable Instruments Act and took the Complaint on file in S.T.C.No.206 of 2015 and directed the issuance of summons to the Accused on payment of process fee and directed the matter to be called on 06.05.2015. Although the Complainant was not examined under Section 200 Cr.P.C., yet, the cognizance taken by the trial Court on the Complaint is perfectly maintainable in Law, in the considered opinion of this Court. Before the trial Court, P.W.1 in his cross examination, had stated that he had not produced any document to show that he continues to be the Manager of the Appellant/ Complainant Firm. In fact, in his evidence, he had admitted that he had not filed any license for the Appellant s Finance Firm to run the Finance Business. Even in the notice, complaint and in his chief examination and in Power Deed, P.W.1 had not stated that he knows about the money financial dealing details in a complete fashion. At best, atleast on behalf of the Appellant/Complainant, one of the Partners might have been examined before the trial Court in the main case. But that is not the position in the present case. The Account Book, separate Register, registered pertaining to the Appellant/ Complainant s Finance Company was not produced before the trial Court and marked as an Exhibit. In the present case, P.W.1 was examined on behalf of the Appellant/Complainant and since he had not appeared as a witness in his personal capacity, he could not appear as a witness on behalf of the Appellant/Complainant in the capacity of Complainant. Also that, before the trial Court, no documents were produced to show that within six months of commencement of its business, the Appellant/ Complainant had the capacity to lend a sum of ₹ 5,90,000/-. In view of the aforesaid forgoing discussions, as far as the present case is concerned, this Court is of the earnest view that in the present case, based on the materials available on record, it is not possible for this Court to deliver a Judgment and therefore, is of the considered opinion that the Remand of the matter is Just, Fair and necessary. Otherwise, there would be a failure and miscarriage of Justice. Besides this, this Court opines that the evidence of the Complainant is necessary to prosecute the complaint filed by P.W.1 in order to render correct Judgment in the case, atleast a single Partner from the Appellant/Complainant s Firm who had lent money to the Respondent/Accused should be examined as witness on behalf of the Appellant/Complainant.
Issues Involved:
1. Legally Enforceable Debt under Section 138 of the Negotiable Instruments Act. 2. Validity of Complaint Filed by Power of Attorney Holder. 3. Compliance with the Tamil Nadu Money-Lenders Act, 1957. 4. Adequacy of Evidence and Documentation. 5. Miscarriage of Justice due to Trial Court's Findings. Issue-Wise Detailed Analysis: 1. Legally Enforceable Debt under Section 138 of the Negotiable Instruments Act: The trial court concluded that the complainant's firm had no capacity to lend ?5,90,000/- and thus the cheque amount was not a "Legally Enforceable Debt." The court emphasized that without a license, the amount lent would not be legally enforceable. The appellant argued that the respondent did not deny the execution of the cheque, invoking the presumption under Sections 118 and 139 of the Negotiable Instruments Act. The appellant also contended that the trial court overlooked the Tamil Nadu Money-Lenders Act, 1957, which excludes transactions based on negotiable instruments exceeding ?10,000/- from its purview. 2. Validity of Complaint Filed by Power of Attorney Holder: The appellant's complaint was filed through a Power of Attorney holder, P.W.1 (Selvaraj). The trial court found that P.W.1 did not establish his knowledge of the transaction. The appellant argued that P.W.1 was aware of the transaction and that the trial court's conclusion was incorrect. The court noted that while a Power of Attorney holder can file a complaint, they must have witnessed the transaction or possess due knowledge about it. The trial court's cognizance of the complaint without examining the complainant under Section 200 Cr.P.C. was deemed maintainable. 3. Compliance with the Tamil Nadu Money-Lenders Act, 1957: The respondent argued that the appellant did not produce any document to show it had obtained a license to run a finance company. The trial court held that the appellant's business was not compliant with the Tamil Nadu Money-Lenders Act, 1957, as it did not produce necessary documents like registers, ledgers, and account details. The appellant cited decisions indicating that advances made on the basis of negotiable instruments exceeding ?10,000/- do not fall under the definition of a loan under the Act. 4. Adequacy of Evidence and Documentation: The trial court found that no documents were filed to show the complainant's capacity to lend ?5,90,000/-. The appellant argued that the trial court's judgment was based on surmises and not on material evidence. The court emphasized the importance of corroborative evidence to support entries in account books, as mere entries are insufficient to charge a person with liability. The appellant was directed to provide adequate evidence, including examination of partners and marking of account books through competent witnesses. 5. Miscarriage of Justice due to Trial Court's Findings: The appellant contended that the trial court's judgment resulted in a miscarriage of justice. The court noted that the trial court failed to consider relevant aspects in a proper perspective, leading to an incorrect judgment. The court opined that remanding the matter was necessary to prevent a failure of justice and to allow the appellant to present adequate evidence. Conclusion: The High Court set aside the trial court's judgment and remanded the matter for fresh disposal. The trial court was directed to provide the appellant an opportunity to examine one or more partners as witnesses and to mark account books through competent witnesses. The trial court was instructed to dispose of the case within three months, ensuring adherence to principles of natural justice.
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