2018 (9) TMI 926 - HC - Indian Laws

Maintainability of petition - Petition filed by power of attorney - Dishonor of Cheque - Section 138 of Negotiable Instruments Act - suggestive case of the respondent/accused is that the petition filed by the power of attorney is not maintainable - Held that - In the power of attorney given by the private complainant in Ex.P1, it was given only in respect of M/s.Swastik Yarn Enterprises Limited and to take action another Company Limited wherein the name of M/s.S.R.Sarala & Company was inserted by way of ink and the said fact was admitted by the P.W.1 and thus in the absence of non-examination any of the Directors as to whether the power of attorney agent was given to the present power agent (P.W.1) under Exhibit P1 also covers the respondent case or not cannot be inferred and hence, the trial Court has rightly commented upon the said insertion and corrections held that the power deed is not maintainable, in view of the defects in the power deed. The nonproduction of the alleged document with regard to the alleged transaction, the trial Court is quite right in drawing adverse interference against the appellant and the same cannot be found fault with and thus on entirety of the circumstances, the suggestive case of the defendants as reflected under Ex.R1 issued as early as on 10.02.2013, immediately after the legal notice under Ex.P5, dated 4.2.2003 and non-production of documents relating to the alleged business transaction, non-production of documents receipts and invoices regarding alleged transaction coupled with a fact that Ex.P1 Power Deed is found to be defective, consequently make the appellant case more improbable and unbelievable. On the date of the issuance of stop payment by the respondent/accused is having a amount to the tune of more than one crore, the trial Court quite right holding that respondent has sufficient funds in his account and thereby order of acquittal of the respondent herein and the said finding does not call for any interference - appeal dismissed.

Issues:
1. Alleged commission of offence under Section 138 of Negotiable Instruments Act.
2. Maintainability of power of attorney.
3. Existence of business transaction between the parties.
4. Non-production of business transaction documents.
5. Adverse inference drawn by the trial court.
6. Presumption arising from acceptance of signature on cheque.
7. Appraisal of evidence and documents.
8. Suggestive case of the respondent/accused.
9. Suppression of reply notice by the appellant.
10. Availability of funds in the account of the respondent/accused.
11. Sufficiency of evidence for acquittal.

Detailed Analysis:
1. The appellant filed a private complaint alleging an offence under Section 138 of the Negotiable Instruments Act. The case proceeded to trial, where the respondents/accused were acquitted. The appellant challenged this decision through an appeal.

2. The respondent/accused contended that the power of attorney used by the complainant was not maintainable in law. They argued that there was no valid business transaction between the parties, questioning the legitimacy of the power of attorney appointed by the complainant's company.

3. The appellant claimed a business transaction involving the sale of cotton, where a cheque issued by the second accused was dishonored due to stop payment instructions. The respondent/accused presented a different version, asserting they were merely acting as collection agents and that the cheque was part of a different transaction.

4. During cross-examination, it was revealed that the appellant possessed documents supporting the alleged business transaction but failed to produce them in court. This non-production led the trial court to draw adverse inferences against the appellant.

5. The trial court also noted discrepancies in the evidence, such as the absence of mention of a reply notice from the respondent/accused and the significant funds in the accused company's account at the time of the alleged offence, leading to the rejection of the complaint.

6. The appellant argued that the acceptance of the signature on the cheque should create a presumption in their favor, challenging the trial court's adverse inferences due to the non-production of business transaction documents.

7. Upon analyzing the evidence and documents, the court found discrepancies in the power of attorney document, leading to the conclusion that the prosecution against the respondent/accused was not maintainable due to defects in the power deed.

8. The respondent/accused maintained their position as collection agents and provided a detailed account of the events surrounding the cheque issuance and subsequent stop payment instruction, supporting their version of the events.

9. The appellant's suppression of a reply notice and failure to mention it in court raised doubts about their credibility, along with the significant funds in the accused's account at the time of the alleged offence.

10. The court considered the availability of funds in the accused's account as a factor supporting the respondent's version of events and casting doubt on the appellant's case regarding the alleged business transaction.

11. Ultimately, the court upheld the trial court's decision to acquit the respondent/accused, finding the evidence and circumstances supported the acquittal, and confirming the order of dismissal of the criminal appeal.

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