9911796707
TMI Blog2015 (2) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... Company. She defaulted and became due to the Company for a sum of Rs. 60,000/- despite several demands she did not repay the said amount. Finally she paid one account payee cheque bearing No. 4796893 dated 27.09.2007 drawn on Bank of India, Hospet Branch for Rs. 60,000/-. When the cheque was presented for encashment, it was returned with an endorsement 'Funds insufficient'. The complainant informed the said fact to the accused by way of demand notice and called upon her to repay the amount within fifteen days, from the date of receipt of the notice, the notice is served through certificate of posting, she refused the notice sent through R.P.A.D., she neither did reply nor did comply the demand, she has issued cheque knowing that there is insufficient funds in her account thereby committed offence under Section 138 of N.I. Act. 3. On receipt of the complaint, the learned Magistrate took cognizance, recorded the sworn statement of the G.P.A. holder, being satisfied with the merits in the complainant's case ordered to register the criminal case, and procured the accused. She pleaded not guilty to the substance of accusation read over to her by the Court. The G.P.A. holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued to her for repayment of the outstanding debt. The bye-law of the Company is not produced to establish that Board of Director can authorise the Managing Director in turn, said Managing Director can authorise the G.P.A. holder to present the complaint under Section 138 of N.I. Act or to adduce evidence as a witness in the complaint case. The reasoning assigned by Court below for dismissal of complaint is based on sound reasoning and is in accordance with the well established legal position and the appeal is liable to be rejected. 7. In the light of the above submissions, the point that arises for my consideration are:- i) Whether the complaint was properly presented and prosecuted? ii) Whether the accused issued the cheque towards 'legally enforceable debt or liability'? 8. The complaint was presented before the learned Magistrate by one I.B. Venkatesh, the Legal Consultant and Power of Attorney Holder of the company. But, the evidence was adduced by one G. Krishnamurthy, Field Executive and Power of Attorney Holder of the complainant of the branch office of Hospet. Among other things PW 1 produced Ex. P8-the G.P.A. executed in his favour by the Managing Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shtra, 2013, AIR SCW 6807 raised the following questions for consideration:- i) Whether a Power of Attorney holder can sign and file a complaint petition on behalf of the complainant?/Whether the eligibility criteria prescribed by Section 142(1) of NI Act would stand satisfied if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque ? ii) Whether a Power of Attorney holder can be verified on oath under Section 200 of the Code? iii) Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint? iv) If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can the Power of Attorney holder verify the complaint on oath on such presumption of knowledge. v) Whether the proceedings contemplated under Section 200 of the Code can be dispensed with, in the light of Section 145 of the N.I. Act which was introduced by an amendment in the year 2002?" and answered the same as follows:- i) Filing of complaint petition under Section 138 of N.I. Act through power of attorney is perfectly legal and competent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, as an agent of the payee company in due course or possessed due knowledge regarding the said transaction. If PW-1, in his capacity as an employee of the company had gathered the material information pertaining to this loan transaction, on the basis of the documents maintained in his office, he ought to have stated so and explained under what circumstances the accused had issued the cheque in question. The affidavit evidence lacks such material particulars. That tells upon competency of the attorney to depose as witnesses. Added to that Authority of the Board of Directors to empower the Managing Director as per Ex. P12 is not proved by producing bylaws of the company. In the backdrop of the complaint verification and the affidavit evidence of the witness lacking necessary averments about the personal knowledge of the respective deponent, fail to qualify to the requirements of an Attorney as laid down by the Apex Court in A.C. Narayanan's case, thereby prosecution of the complaint case was vitiated from the very inception. 14. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rion Bank Ltd., decided on 13.10.2009 The Punjab and Haryana High Court at Chandigarh in the case of M/s. Guru Nanak Tractors Vs. Swam Singh disposed of on 31/7/2013 and the High Court of Chhattisgarh at Bilaspur in the case of Rajkumar Sharma Vs. Shriram Finance Co. Ltd. in Crl. M.P. No. 128/2014 disposed of on 7/8/2014 has also taken the same view. 17. The Supreme Court in a case reported in (2014) 12 SCC 539 between M/s. Indus Airway Pvt. Ltd. and others Vs. M/s. Magnum Aviation Pvt. Ltd., and another considered the conflicting views taken by the High Courts of Delhi and, High Court of Andhra Pradesh, Madras High court, Gujarat High Court, Kerala High court, and set the controversy at rest by holding that the post-dated cheques issued by the purchaser as an advance payment in respect of the purchase orders cannot be considered towards discharge of legally enforceable debt or other liability, and, the consequently dishonor of such cheque does not amount to offence under Section 138 of the N.I. Act. 18. In the light of the above, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
