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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 ..... 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 reads thus: "The Complainant is a Public Limited Company incorporated under the Companies Act, 1956 and is represented herein by its duly constituted attorney Mr. V. Venkatachalam. A duly attested copy of the Power of Attorney executed by the Company in favor of the said Attorney is annexed herewith and marked as Exhibit-I. The Address for service of all notices and processes on the complainant is that of its counsels M/s. S.P. Ravi P. Manimaran, M. Ramesh and T. Balakrishnan at No.57, Law Chambers High Court, Madurai. The address for service of all notices and processes on that of the accused is the same as stated above. 1. The Complainant Company is engaged in the business, inter alia, of manufacturing and marketing of Polyester Products such as Polyester Staple Fibre, Acrylic Staple Fibre, Recron 3s,PolyesterFilament Yarn, Polyester Filament Yarn, Polyester Texturised Yarn, Polyester Twisted Yarn etc. 2. The Complainant states and submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant 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 Lacs on the date of release of the second charge and Rs.2,63,29. 776.61 on demand. The undertaking dated 28 July 2010, executed by the Accused in favour of the Complainant is annexed hereto and marked as Exhibit-4. 8. Later on, the Accused herein have paid a sum of Rs.10 Lacs to the Complainant and to ensure payment of the remaining amount, they have issued a Promissory Note for the amount of Rs.2,63,29.776.61 to the Complainant. Thus, the Complainant Company has released its second charge on the said property. The Promissory Note dated 30 July,2010, issued by the Accused in the name of the Complainant is annexed hereto and marked as Exhibit-5. 9. The Complainant submits that in order to discharge the aforesaid legally enforceable liability of 2,63,29. 776.61, the Accused have issued to the Complainant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 Accused have caused great financial loss, set back in the business and mental agony to the Complainant. The complainant is unable to meet its liabilities because of the illegal acts committed by the Accused. Therefore, the complainant ought to be compensated suitably. 17. The cause of action for presenting the complaint arose on and from 25 December 2010 since, the Accused failed to pay to the Complainant the amount covered by the dishonored cheque as demanded under the statutory notice as stated above. 18. It is submitted that the drawee bank of the said cheque i.e. the Federal Bank Limited, East Veli Street branch, Madurai, situates within the territorial jurisdiction of this Hon'ble Court and thus this Hon'ble Court has jurisdiction to entertain this complaint and take cognizance of the offence. It is therefore humbly prayed that this Hon'ble Court may be pleased to take this complaint on file, enquire into the matter, summon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usand 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, Axis Bank Limited, Madurai. However, the said cheque has been dishonoured by your bank due to insufficiency of funds in your bank account and was returned along with a dishonor memo dated 16 November 2010. 7. My clients state that you all have been actively involved in all aforesaid transactions with my clients and the said cheque was issued with the consent and connivance of all of you. 8. In the circumstances, my clients have instructed me to call up on you to demand payment of 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) being the amount covered by the said cheque, within fifteen (15) days from the receipt hereof by you, which I hereby do, and give you this notice that if you fail to make payment of the said amount within fifteen (15) days from the, receipt hereof, my clients will initiate legal proceedings as they may be advised, against you at your entire r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which had been created on by clients property* is only for the purpose of security and the said security was discharged by your client once my client had settled the dues pending to your client. When my client asked the original agreement and Blank cheque issued at the time of entering agreement, your clients authorized authorities said that, the documents are held up at records Section the same will be sent through you by the post. 12. My clients state that your client now had using the said cheque leaves to collect the debts which has been created by Sri Mappillai Vinayagar Industries and trying to shift the burden fully on me for the payments due to RIL. 13. My client states that it is very clear that my client had been discharged from all the liabilities once the agreement has been terminated by your client and as now the steps which your client is initiating it illegal and were mis appropriation of instruments by your client. 14. That my client ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 cross examination. 9. We heard Mr. Prakash D. Naik, the learned senior counsel, appearing for the complainant (appellant) and Mr. S Nagamuthu, the learned senior counsel, appearing for the respondents. 10. As we are inclined to remand the matter to the High Court, we do not propose to say anything further. However, all that we want to say at this stage is that the High Court while declining to grant leave, should have kept in mind Section 139 of the NI Act as well as Section 118 of the NI Act. The High Court should have tried to consider the case of the complainant applying the two provisions to the facts of the case, more particularly, having regard to the evidence on record oral as well as documentary. This aspect has not been touched even by the Trial Court and therefore, it was necessary for the High Court to look into it closely. 11. In such circumstances, the impugned order passed by the High Court is set aside. 12. Leave is granted to the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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