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P. Sreedharan Nair v/s M/s. Amaravathi Finance & Investments, Rep. by its Proprietor K. Radhakrishnan, Through his Power of Attorney V.B. Mani, Mylapore, Chennai

    CRL. R.C. NO. 595 & 597 OF 2005 & CRL. M.P. NOS. 3883, 3884, 3892 & 3893 OF 2005

    Decided On, 27 March 2012

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.S. KARNAN

    For the Petitioner: Ram & Ram, Advocate. For the Respondent: B. Divakaran, Advocate.



Judgment Text

(Prayer: Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to call for the records and set-aside the judgment and orders passed by the Courts below i.e., XVIII Metropolitan Magistrate Court in C.C.No.1984 of 2000, dated 11.02.2004 and confirming by the III Additional Sessions Judge, Fast Track Court-III, in C.A.No.70 of 2004, dated 31.03.2005, convicting and sentencing the petitioner to suffer an imprisonment of 9 months and also directing him to pay a compensation of Rs.1,91,160/- (Rupees One Lakh Ninety One Thousand One Hundred and Sixty only) in default to undergo three months simple imprisonment and acquit the petitioner / accused.)

ORDER

1. The revision petitioner / appellant / accused has preferred this Criminal Revision in Crl.R.C.No.595 of 2005 against the judgment made in C.A.No.70 of 2004, on the file of the III Additional Sessions Judge, Fast Track Court-III, Chennai, confirming the order of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai made in C.C.No.1984 of 2000.

2. The respondent / complainant's case is as follows:-

The complainant, (M/s.Amaravathi Finance and Investments) states that the accused is a customer of the complainant and owes a sum of Rs.1,91,160/- to the complainant. In discharge of the said debt and liability, the accused issued a cheque bearing No.004593, dated 24.12.1999, for a sum of Rs.1,91,160/- drawn on Central Bank of India, Mavoor Road, Kozhikode, in favour of the complainant. The cheque was presented for encashment in the complainant's bankers viz., Nedungadi Bank, Mylapore, Chennai-4, on 29.12.1999. However, it was dishonoured and returned unpaid, through return memo dated 04.01.2000, with the endorsement "exceeds arrangement". The complainant issued a lawyer's notice to the accused on 20.01.2000, which was received by the accused on 28.01.2000, but the accused had neither replied to the notice nor paid the cheque amount. Hence, the complainant had filed the complaint against the accused before the Court of XVIII Metropolitan Magistrate, Saidapet, Chennai praying for compensation out of fine amount under Section 357 of Cr.P.C.

3. The accused pleaded not guilty before the trial Court and hence enquiry was initiated.

4. On the complainant's side, two witnesses were examined as P.W.1 and P.W.2 and 10 documents were marked as Exs.P1 to P10 viz., Ex.P1-the power of attorney bestowed on P.W.1; Ex.P2-promissory note; Ex.P3-cheque; Ex.P4-return memo; Ex.P5-debit advice; Ex.P6-lawyer's notice; Ex.P7-acknowledgment card; Ex.P8-statement of account of the accused in the complainant's firm; Ex.P9-bank account statement of accused; Ex.P10-cheque return register. On the side of the accused, the accused was examined as R.W.1 and seven documents were marked as Exs.R1 to R7 viz., Ex.R1-photocopy of cheque issued register; Ex.R2-complaint; Ex.R3-copy of chit pass book; Ex.R4-case filed by accused against the complainant; Ex.R5-the reply notice sent by accused; Ex.R6-postal receipt and Ex.R7-acknowledgment card.

5. P.W.1, the legal officer employed in the complainant's firm had adduced evidence that the accused was a customer in their firm; that the accused had borrowed a sum of Rs.1,00,000/- from their firm on 24.01.1997; that the accused and one Mr.Prakash had given a pronote for the same (Ex.P2); that the accused owes their firm a sum of Rs.1,93,000/- towards principal and interest; that on demand made by the complainant, the accused had issued a cheque for Rs.1,91,160/- dated 24.12.1999 drawn on Central Bank of India, Mavoor, Kozhikode Branch (Ex.P3); that the said cheque was deposited with their bankers viz., Nedungadi Bank, Mylapore on 29.12.1999 for encashment; that it was dishonoured and returned on 04.01.2000, with an endorsement "exceeds arrangement"; that the return memo was marked as Ex.P4; that the debit notice sent by their bank was marked as Ex.P5; that a lawyer's notice (Ex.P6) was sent to the accused on 20.01.2000 and that it was received by the accused on 28.01.2000, as per acknowledgment card marked as Ex.P7 and that the accused had neither replied nor repaid the amount and hence the complaint was filed against the accused under Section 138 of Negotiable Instruments Act.

6. P.W.2, the Branch Manger of Central Bank of India, Mavoor Road, Kerala had adduced evidence that the accused had a cash credit account in their bank; that the account is in the name of the firm "Kings Footwear"; that the accused is the sole proprietor of this firm; that his account number is 45; that the cheque leaf marked as Ex.P3 had been issued by their bank; that the said cheque was returned by their bank on 04.01.2000 with an endorsement "exceeds arrangement"; that the return memo has been marked as Ex.P4; that the debit amount in the account of the accused was Rs.4,58,950.12; that the accused had an overdraft facility in their bank and that the accused was allowed an overdraft upto Rs.4,00,000/-; that the copy of bank account statement of accused was marked as Ex.P9; that the cheque return memo was marked as Ex.P10;

7. R.W.1, in his evidence deposed that he was conducting his business at Calicut; that he is aware of the existence of Arjun Amaravathi Chit Company; that he is aware that one Radhakrishnan is the Managing Director of the said chit firm as well as that of Amaravathi Finance; that he has made payment for six chits; that one of the chits was in the name of his son-Dinesh, the second chit was in the name of his other son-Prakash; that three chits were in the name of his wife and one chit was in his name; that he had bid successfully in all the said chits; that he had also received the money for the said chits; that during payment of said chit money to him, he had signed in blank cheques and stamped promissory notes; that the exhibits marked as P2 and P3 had been signed by him and given to the Manager of the chit fund firm; that he had repaid the sum availed through the said chits; that he had marked Ex.R3, the copy of chit passbook given by Arjun Amaravathi Chit Company in Case No.1917 of 2000; that even after he had effected payment, the said chit company had not returned the cheques and promissory notes signed by him; that he had filed a case against the said chit company in C.C.No.1917 of 2004 and that a copy of the said case filed has been marked as Ex.R4; that reply notice sent by him to the complainant has been marked as Ex.R5 and the postal receipt for the same has been marked as Ex.R6; that the acknowledgment card showing proof of acceptance by the lawyer of the complainant had been marked as Ex.R7; that he had stated in the reply notice that the said cheques and promissory notes signed by him had been misused by the complainant.

8. It was also argued on the side of the accused that the proprietor of the complainant's firm is a proprietary concern and as such the power of attorney holder of the said proprietary firm cannot conduct the case on behalf of the proprietor; that the power of attorney holder can only appear on behalf of the proprietor and that he has no power to conduct the case. It was also argued that the signature contained in the promissory note and cheques had been written in one colour of ink, whereas the writing in the amount column and in the body of the promissory note had been written in another ink; that the accused had sent a reply notice to the lawyer's notice sent by the complainant; that the complainant had misrepresented facts to strengthen his case.

9. The learned Magistrate on considering the documents marked to show that P.W.1 has been granted power of attorney by the proprietor, even before filing of the case and that the said P.W.1 was empowered to file Criminal and Civil Cases on behalf of the firm and to appoint lawyers was of the opinion that P.W.1 had the necessary requisites as a power agent to represent the firm in the present case.

10. It was also argued on the side of the accused as the complainant had accepted that the cheque had been issued by the accused in order to settle the loan as mentioned in the promissory note and as the promissory note has become invalid due to limitation, the cheque issued along with the promissory note in the year 1995 is also not valid, as it has been barred by limitation. On cross-examining P.W.2, P.W.2 has stated that the cheque book (Ex.P3) has been issued to the accused on 08.07.1995 and that the next cheque book had been issued to the accused on 05.10.1995. Ex.R1, the extract of cheque return register was marked to prove the said contention. The learned Magistrate was however inclined to accept the contention raised by the complainant that though the first cheque book was issued in the year 1995 to the accused, the accused, with the intention to cheat him, had issued one of the cheques in that book to him on 29.12.1999.

11. It is seen from the evidence of R.W.1 that he had admitted that he had given the said pronote and cheque only after receiving payment. It is also seen that the accused has admitted that cases have been filed against the accused by other parties and that some of these cases had been settled and that some others are pending before the concerned Courts. The learned Judge was of the view that the accused was in the habit of borrowing loans from finance companies and then lodging cases against such companies and subsequently settle the loan amount. Though it was argued by the accused that he had filed a case against Arjun Amaravathi Chits in the High Court and that it is pending before the Court, no documents or oral evidence had been laid down to prove that the alleged case filed was related to the cheque and promissory notes produced in the present case. From a scrutiny of Ex.R3, the copy of promissory note and the chit entries made in the chit book, it is seen that amounts of Rs.500/-, Rs.300/- and Rs.200/- have been paid on a regular basis from the year 1995 onwards and the said loan had been cleared on 07.01.1999. The learned Magistrate, on considering that the accused had not taken any effort to get back the cheques issued by him and also on considering that no police complaint had been lodged by him was of the opinion that the accused had only tried to drag on the proceedings in order to elude the clutches of law. The learned Magistrate on scrutiny of oral and documentary evidence held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced the accused to undergo simple imprisonment for a period of nine months and also directed the accused to pay a compensation of Rs.1,91,160/- to the complainant within three months from the date of their order; in default of payment, the accused was to undergo further period of simple imprisonment for three months.

12. Aggrieved by the said conviction and sentence imposed by the trial Court, the accused had preferred a Criminal appeal in C.A.No.70 of 2004 before the III Additional Sessions Judge, Fast Track Court-III, Madras. The learned counsel for the appellant has argued that the documentary exhibits produced on the appellant's side had not been properly examined. It was also pointed out that the trial Court had erred in not taking into account the statements made by P.W.1 in his cross-examination that he was not aware of how the said loan amount was paid to the appellant / accused and that he was not present when the said loan was given to the accused and that he was aware of the said transaction as he had been informed about this in his firm. It was also argued that the evidence of P.W.1 cannot be accepted as he is only a power of attorney holder and that even in the original complaint filed against him, the signature and seal of the complainant had not been affixed; that the said pronote issued by the appellant had become invalid as it was barred by limitation.

13. The learned Sessions Judge, opined that the appellant himself had admitted that the said cheque was issued on a pronote signed by him and that he had issued the cheque only after receiving the payment from the complainant. It is also seen that the appellant had also admitted that out of four cases filed by the complainant, two of the cases are still pending. The learned Sessions Judge on considering that the appellant being an experienced, well educated person would have been aware of the reasons as to why he had signed the cheque and given it to the complainant and as such was not inclined to believe the arguments raised by the counsel on the side of the accused that the appellant had been cheated by the complainant, by getting his signatures on pronotes and cheque. The learned Sessions Judge, on considering that the impugned order of the trial Court was a well considered one held the appellant guilty of offence under Section 138 of Negotiable Instruments Act and dismissed the appeal, thereby confirming the order of the trial Court.

14. Aggrieved by the said dismissal of his appeal, the appellant has preferred the Criminal Revision before this Court in Crl.R.C.No.595 of 2005.

15. The learned counsel for the revision petitioner has argued that at the time of paying the amount due on the chits, the said Arjun Amaravathi Chits Private Limited demanded some blank signed cheques and blank signed pronotes from the petitioner herein. It was represented by the Chit Company that it is the usual practice of the Chit Company to insist for blank signed documents while handing over the prize amount, to ensure the due repayment of future subscriptions. After due discharge of the chit, several demands were made seeking the return of the above referred blank signed documents from the chit company. It was argued that the said facts were also brought out in the civil suit preferred by the petitioner in O.S.No.40 of 2000 before the learned District Munsif Court, Kozhikode, Kerala. It was argued that there is no legally enforceable debt or liability for prosecuting the petitioner. It was also pointed out that the complaint instituted by a power of attorney holder is bad in the eye of law and also because the payee had not signed the complaint. It was submitted that as the power of attorney holder had admitted that he does not know the entire transactions in the case, no attempt was made to examine the proprietor of Amaravathi Finance and Investments, Mr.Radhakrishnan as one of the witnesses in the case.

16. The learned counsel for the complainant argued that the accused had admitted that he had issued the cheque in favour of the complainant. The said cheque was returned unpaid, after presentation. Once the accused admitted that fact that he had issued the cheque and admitted his signature in the cheque, he has no credentials to challenge the orders of the Courts below. In order to prove the said case, the c

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omplainant had marked relevant documents. 17. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and on perusing the impugned judgment and conviction of the first appellate court passed in C.A.No.70 of 2004, on the file of Additional Sessions Judge, Fast Track Court-III, dated 31.03.2005, this Court does not find any discrepancy in the said orders. Therefore, the revision is dismissed. Therefore, this Court directs the learned XVIII Metropolitan Magistrate, Saidapet, to issue bailable warrant on the accused and secure him into judicial custody, forthwith. If the accused remits the compensation amount of a sum of Rs.1,91,160/- to the credit of C.C.No.1984 of 2000, on the file of XVIII Metropolitan Magistrate, Saidapet, before being remanded into judicial custody, the accused would be set at liberty and this Court order would not be operated against him. If the accused remits the compensation, the complainant is at liberty to withdraw the said amount from the trial Court, after filing a Memo. The order has been passed by this Court as per the discretionary power vested with it. 18. Resultantly, the above criminal revision is disposed of with the above observations. Consequently, the judgment and conviction passed in C.A.No.70 of 2004, on the file of III Additional Sessions Judge, Fast Track Court-III, Chennai, dated 31.03.2005, confirming the conviction and sentence passed in C.C.No.1984 of 2000, on the file of XVIII Metropolitan Magistrate Court, Chennai, dated 11.02.2004 is modified. Consequently, connected miscellaneous petitions are closed.
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