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TMI Blog2025 (3) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... . JUSTICE J. B. PARDIWALA And HON'BLE MR. JUSTICE R. MAHADEVAN For the Appellant : Mr. Prakash D. Naik, Sr. Adv. Mr. K. R. Sasiprabhu, AOR Mr. Ajit Karunakaran, Adv. Mr. Vishnu Sharma A S, Adv. Ms. Namrata Saraogi, Adv. Ms. Kavya Agarwal, Adv. For the Respondent : Mr. S Nagamuthu, Sr. Adv. Mr. P. Soma Sundaram, AOR Mr. Y. Arunagiri, Adv. Mr. Shreyas Kaushal, Adv. ORDER 1. This appeal arises from the judgment and order passed by the High Court of Judicature at Madras at Madurai dated 23.02.2015 in Crl. OP(MD) No.865/2015 in Crl. A.(MD)SR NO.1069/2015, by which the High Court rejected the application filed by the appellant herein, seeking leave to appeal against the judgment and order dated 18.11.2014, passed by the Judicial Magistrate No.1, Fast Track Court, Magisterial Level, Madurai, acquitting the respondents herein, of the offence punishable under Section 138 of the Negotiable Instruments Act (for short "the NI Act") in STC No.940 of 2012. 2. The facts giving rise to this appeal may be summarized as under:- (a) The appellant herein, lodged a complaint for the offence under Section 138 of the NI Act, against the respondents herein, (original accused persons) which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rs.2,23,50,327.61 so collected by the Accused, the Accused have failed and neglected to pay an amount of Rs.1,87,28,768.61 to the Complainant. 6. The Complainant submits that in order to secure payment against the said amount due and payable by the Accused to the Complainant, the Accused No.4, on her behalf and on behalf of the other Accused, has created in favour of the Complainant a second charge on their landed property lying at 1, Vanamamamali Nagar, Bye Pass Road, Madurai-10 by way of a simple mortgage, registered as Document No.957/2009 with the Sub Registrar, Arasaradi, Madurai. 7. The Complainant submits that during the month of July, 2010 the Accused have requested the Complainant to release its second charge on the said property by assuring that the accused will repay to the Complainant the amount due and payable by them to the Complainant along with the interest thereon. The total amount due and payable by the Accused to the Complainant till 30 July 2010 was thus mutually calculated and confirmed as Rs.2,73,29,776.61 by the Accused and accordingly, by an Undertaking dated 28th July 2010, the Accused have undertaken in writing to pay to the Complainant Rs.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and acknowledgement cards are annexed hereto and marked collectively as Exhibit-8 Colly. 13. The Complainant submits that the Accused having so received the said notice, have failed and neglected to pay to the Complainant the amount covered by the said dishonored cheque within 15 days of receipt of the said notice. And, instead of paying the said amount as demanded, the Accused have caused to issue to the Complainant a common reply dated 31 December,2010, containing certain false and frivolous allegations and contentions. Original reply dated 31 December,2010 sent on behalf of the Accused to the Complainant is annexed hereto and marked as Exhibit-9. 14. It is submitted that till today the Accused have not paid the amount covered by the dishonored cheque to the Complainant and hence their conduct amounts to an offence punishable under Section 138 of the Negotiable Instruments Act,1881 and they are liable to be prosecuted under Section 138 read with 141 of the Negotiable Instruments Act, 1881. 15. The complainant reiterates that the statutory notice was served on the Accused on 9 December 2010 and this complaint is filed within the stipulated time. 16. The acts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o my clients, you have created in favour of my clients a second charge on your property lying at Vanamamalai Nagar, Bypass Road, Madurai-10 by way of a registered mortgage deed. 4. During the month of July 201, you have requested my clients to release their second charge on your said property by assuring them that you will repay to my clients the said due along with its interest. The total amount due and payable by you to my clients till 30July 2010 was mutually calculated and confirmed as Rs. 2,73,29,776.61. Accordingly, you have undertaken in writing to pay my clients Rs. 10 lacs on the date of release of the said charge and Rs. 2,63,29,776.61 on demand. Thus, my clients have released their second charge on the said property. 5. My clients state that in order to discharge the aforesaid liability, you have issued to my clients a Cheque bearing No. 272076 dated 30 July 2010 for Rs. 2,63,29, 776.61 (Rupees Two Crores Sixty Three Lacs Twenty Nine Thousand Seven Hundred and Seventy Six and Sixty one paisa only) drawing on the Federal bank Limited, Madurai branch ("the said cheque"). 6. My clients presented the said cheque for payment to your bank, through my clients' bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. My client states that one of the spinning mills at Madurai named as Sri Mappillai Vinayagar group at Madurai had purchased certain products from you and failed to remit the payment which is due to your client. 7. My clients states that in the statue of Del credere agent my client had taken necessary steps against the Sri Mappillai and Manickka Vinayagar group of Mills collect the payment which is due to your client. 8. My client states during the course of business my client has wanted and performed his duty perfectly and genuinely, but your client has terminated the relationship long ago with my client. 9. My clients states that my client had filed a suit before the lll Addi. Subordinate Judge of Madurai in IP No. 21 of 2008 in order to declare the Sri Mappillai Vinayagar group to declare as insolvent and collect the pending amount from them. 10. My client states that the amount which has been presented to ~ the bank is not done with the consent of my client. It has been presented by your client in order to satisfy your losses which your client had been faced in south of Tamilnadu in dealing with polyster fibre products. 11. My client states that the charge whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. (iii) The particulars of the goods are not found to have been stated in the complaint. (iv) The complainant has not filed any statement of account and has also not furnished any details of the commission payable to the complainant. (v) No particulars furnished as to on what date the cheque was issued by the respondents in favour of complainant. 5. Few other aspects also weighed with the Trial Court in taking the view that the complainant had failed to establish its case. 6. As the respondents herein, came to be acquitted the complainant went before the High Court and prayed for special leave to appeal under the provisions of sub-section 4 of Section 378 of Criminal Procedure Code. The High Court thought fit not to grant leave and accordingly dismissed the appeal. 7. In such circumstances referred to above, the complainant is before this Court with the present appeal. 8. Essentially what weighed with the High Court is the fact that the power of attorney had no personal knowledge about the entire transaction between the complainant and the company and therefore, was not a competent witness to depose. In other words, the Power of Attorney was unable to withstand the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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