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TMI Blog2002 (3) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate issued process of the above referred punishable offence. Certified copy of Power of Attorney produced by the complainant before the Metropolitan Magistrate Court is available at Annexure-B. It is a Specific Power of Attorney by Executive Director for Continental Textile Mills Limited. 2. It is the say of the petitioner that he did appear before the learned Metropolitan Magistrate in the proceedings and submitted application to drop the proceedings for various grounds. But the learned Metropolitan Magistrate has rejected the application vide order dated 1st December, 2000. The petitioner felt that the order of learned Metropolitan Magistrate has been passed under some confusion or misunderstanding, and therefore, another application was moved by the petitioner and the said application has also been dismissed because the learned Metropolitan Magistrate felt that no rehearing is required . 3. To appreciate the case of the present petitioner, it would be proper to state the case pleaded in the complaint in nutshell. It is submitted by the complainant that the petitioner-original accused Shri Bharatbhai K. Patel approached Shri C. L. Verma and intended to take over Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that, C.T.M. was in financial crisis and in the year 1992. C.T.M. could not pay its electricity bills of more than Rs. One crore, therefore, ultimately from 2-2-1992 production of the mill company was stopped and on 5-2-1992 closure of the mills company was declared. There was tremendous industrial unrest amongst the workers, and therefore, various cases were filed by the Trade Union and workers in the Labour Court for recovery of its dues being Recovery Application Nos. 1471 of 1997, 2545 of 1995, 2953 of 1995 etc. Payment of Wages Application No. 725 of 1992 and 114 of 1993 was also filed by Textile Labour Association (T.L.A.) on behalf of the workers. Criminal Case No. 100 of 1992 under Section 25-R of the Industrial Disputes Act was filed by T.L.A. before Labour Commissioner. The company-C.T.M. had preferred Reference before B.I.F.R. under Sick Industrial Companies (Special Provisions) Act, 1985, which came to be rejected on 29-4-1994. Therefore, considering various Recovery Applications mentioned above and others, there was liability upon C.T.M. to pay more than ₹ 22 crores. The Labour Court on 30th September, 1997 passed orders in two Recovery Applications being No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 2(P) of the Industrial Disputes Act. The petitioner was also allowed to join as party in the said proceedings as he was present. In the settlement the payment schedule was fixed and accordingly parties were to act. Therefore, on 29-8-1998 this Hon'ble Court accepted the undertaking and the settlement between the parties and substituted the order dated 13-8-1998 by the terms of settlement on record. There are many further facts which are not stated at present. However, subsequently the C.T.M. filed Misc. Civil Application No. 2409 of 1998 in the said Special Civil Application No. 3418 of 1998 on the ground that the order dated 29-8-1998 is obtained by fraud as Mr. A. S. Mann was never been authorised to sign and accept any such settlement and he has colluded with the petitioner etc. After hearing the parties, this Honourable Court passed an order on 1-12-1998 allowing the application and rejecting the order dated 29-8-1998 passed in Misc. Civil Application No. 1452 of 1998 and order dated 13-8-1998 was restored in the petition. This Hon'ble Court held Mr. C. L. Verma also responsible for which cost of ₹ 40,000/- was imposed. This judgment is reported in 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted that Mr. Surjeet Singh Macker, on the date of complaint was not Power of Attorney holder of Mr. C. L. Verma nor there was any authority with said Mr. Macker to file complaint on behalf of Mr. C, L. Verma. Absence of specific Power of Attorney is very relevant in present case. Mr. C. L. Verma has already died before few months ago. So, it is rightly argued that therefore, no such Power of Attorney exists even if it had been given. The cheque of ₹ 1.00 crore was given by the petitioner to Mr. C. L. Verma in his individual capacity for his personal transaction of transferring of his shares, and therefore, the petitioner was not concerned with Continental Textile Mills Ltd. as there was no legal debt qua Mill Company, The petitioner was not in any way obliged or required to pay any amount to Continental Textile Mills. This can be said to be a defence plea only. The complainant on specific allegations has to show a prima facie legal liability of the accused and in doing so, he can take advantage of the scheme of the Act i.e. Section 139 Presumption etc. Two affidavits filed by Mr. C.L. Verma in M.C.A. No. 2409 of 1998 in Spl.C.A. No. 3418 of 1998 dated 14th November, 1998 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first respondent issued a cheque dated 14-7-1998 for a sum of ₹ 1 crore. The cheque was dishonored as per the communication of the Bank dated 20-7-1998. But Mr. Verma did not react thereon. Not only this, in order of this Court dated 13-8-1998 a liberty was obtained by the employer to approach the Collector and satisfy him whatever proposal they have. Just after few days on 29-8-1998 the settlement was produced and the impugned order was passed. There was no activity for the entire month of September, 1998, in spite of the clear statement made that the Mill has been sold to Mr. Patel. Again on 8-10-1998 the cheque of Rs. One crore was resubmitted which was dishonoured and an information in that regard was received on 12-10-1998. Mr. Verma deliberately concealed the circumstances which led him to resubmit the cheque on 8-10-1998. In a complaint filed under Section 138 of the Negotiable Instruments Act, first time it is stated on behalf of the Company that there was a consideration of ₹ 11 crores. This fact has not been stated in this Miscellaneous Civil Application. Of course, Mr. S. S. Macker, Vice President of the Company in his affidavit has stated that the fact has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the trial. At this stage, merely on basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability. 7. The case of K. N. Beeny 2001 (7) SCALE 3, also says that under Section 139 of the Negotiable Instruments Act, the Court has to raise presumption that in complaint under Section 138, the cheque had been issued for debt or liability . 8. With respect, ratio of above judgments would not help the complainant on available set of facts. Though, Section 139 of the N. I. Act provides for presumption, the Court while dealing with petition under Section 482 of Cr.P.C., is supposed to see and appreciate whether (i) Where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (ii) Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused and (iii) Where a criminal proceeding is manifestly attended w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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