Challenge in this criminal revision case is to the judgment dated 27.09.2006 passed in Criminal Appeal No.99 of 2006 by the Additional District and Sessions cum Fast Track Court No.I, Tiruchirapalli.
2.The revision petitioner herein as complainant has filed the complaint in question under Sections 138 read with 142 of the Negotiable Instruments Act on the file of the Judicial Magistrate Court No.IV, Tiruchirapalli, wherein the present respondent has been shown as sole accused.
3.It is stated in the complaint that the accused has received a sum of Rs.3,00,000/- by way of debt from the complainant and in order to discharge the same, he has given the cheques in question each for a sum of Rs.1,50,000/- in favour of the complainant and the same have been presented in the concerned bank and the concerned bank has returned the same stating 'funds insufficient' and subsequently a legal notice has been issued to the accused and even after receipt of the same, he has failed to discharge his liability and thereby he committed offence under Section 138 of the Negotiable Instruments Act.
4.The trial Court, on the basis of the available evidence on record, has found the accused guilty under Section 138 of the Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and also directed him to pay twice the amount mentioned in the cheques by way of compensation to the complainant. Against the conviction and sentence passed by the trial Court, the accused as appellant has filed Criminal Appeal No.99 of 2006 on the file of the first appellate Court.
5.The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has set aside the conviction and sentence passed by the trial Court and remanded Calendar Case No.169 of 2004 to the file of the trial Court. Against the order of remand made by the first appellate Court, the present criminal revision case has been filed at the instance of the complainant as criminal revision petitioner.
6.The learned counsel appearing for the revision petitioner/complainant has repeatedly contended that the respondent/accused has received a sum of Rs.3,00,000/- by way of debt from the complainant and in order to discharge the same, he has given the cheques in question each for a sum of Rs.1,50,000/- and the same have been presented in the concerned bank and the concerned bank has returned the same stating 'funds insufficient' and subsequently a legal notice has been issued and even after receipt of the same, he has failed to discharge his liability and thereby he has committed offene under Section 138 of the Negotiable Instruments Act and since the complainant has been living in a foreign country, he has given Power of Attorney in favour of John Stalin and further he knows all the money transaction which happened between the complainant and accused, and therefore, the power of attorney of the complainant is a competent person to speak about the alleged transaction and the trial Court has rightly come to the conclusion that the respondent/accused has committed offence under Section 138 of the Negotiable Instruments Act, but the first appellate Court without considering the correct legal position and also without considering the facts present in the present case has erroneously set aside the conviction and sentence passed by the trial Court in Calendar Case No.169 of 2004 and remanded the same to the file of the trial Court and therefore, the order of remand made by the first appellate Court is liable to be set aside.
7.Per contra, the learned counsel appearing for the respondent/accused has also equally contended that the complaint in question has been filed on behalf of the complainant by his Power of Attorney viz., John Stalin and he is entitled to file the complaint alone and he is totally incompetent to speak about the transaction alleged to have been entered into between the complainant and the trial Court, without considering the above legal aspect, has erroneously found the accused guilty under Section 138 of the Negotiable Instruments Act, but the first appellate Court has rightly remanded Calendar Case No.169 of 2004 to the file of the trial Court for the purpose of examining the complainant and therefore, the order of remand made by the first appellate Court is perfectly correct and the same needs no interference.
8.It is an admitted fact that the complaint in question has been filed by the Power of Attorney of the complainant. The Power of Attorney of the complainant has deposed evidence in Calendar Case No.169 of 2004 as PW1 and through him Exs.P1 to P8 have been filed on the side of the complainant. The trial Court, after assessing all the evidence available on record, has found the accused guilty under Section 138 of the Negotiable Instruments Act and imposed sentence as noted down earlier.
9.Against the conviction and sentence the accused as appellant has preferred Criminal Appeal No.99 of 2006 on the file of the first appellate Court. The first appellate Court has come to a conclusion that the complainant alone is competent to speak about the alleged transaction entered into between him and accused, and for the purpose of examining him, the order of remand has been made.
10.The only point that has now winched to the fore in the present criminal revision case is:
Whether the Power of Attorney of the complainant is competent to speak about the transaction alleged to have been entered into between the complainant and accused in view of the available facts of the present case?
11.The learned counsel appearing for the appellant/respondent has accited the following decisions;
a)In 2006(4) CTC 333 (K.Gopalakrishnan Vs. Karunakarann rep. by the Power of Attorney Holder, Dhandapani) the Division Bench of this Court has culled out the following observations;
"i)With regard to the First Issue, the complaint even if not signed by the Power of Attorney on behalf of the complainant but signed in his own name, is maintainable and not bad in law because it is more procedural than substantive;
ii)regarding the second issue, though the General Power of Attorney at initial stage fails to produce the deed of Power of Attorney or the affidavit of the complainant in proof of execution of Power of Attorney, the same can be rectified by producing the same at a subsequent stage of the proceedings as and when the validity of the Power of Attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or the validity of the Power of Attorney
(iii) in respect of third issue, it is not required to record the sworn affidavit of the complainant also on a future date to enable the Court to exercise its direction."
b)In 2007 (2) DCR 631 (Kerala High Court) (Ashalatha Vs. State of Kerala and another) it is held that since the Power of Attorney was fully conversant with the facts starting with the borrowal and ending with the filing of the complaint, he was perfectly competent to give evidence on behalf of the complainant. The Power of attorney of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act will be a competent witness if he were to speak of facts which are within his knowledge.
c)In 1997 STPL (LE-Crim) 5480 A.P. (Payyati Savitri Devi Vs. Malireddy Damayantamma and another), it has been held that under Section 138 of the Negotiable Instruments Act complaint has been filed through authorized agent is legally maintainable.
d)In 2005 STPL (LE-Crim) 25229 (Bombay) (M/s.G.J.Packaging Private Ltd. Vs. M/s.S.S.Sales), it has been held that where a power of attorney has full knowledge of transaction, his statement can be recorded by Magistrate for verification of complaint.
12.From the conjoint reading of the decisions referred to supra by the learned counsel appearing for the revision petitioner/complainant, the Court can easily discern that a complaint under Section 138 of the Negotiable Instruments Act can be filed by a Power of Attorney and if he knows the alleged transaction personally, he is a competent witness to adduce evidence in that regard.
13.At this juncture, it would also be more useful to look into the decision reported in 2008 AIR SCW 7493 (M/s.Shankar Finance & Investments Vs. State of Andhra Pradesh & Ors.) wherein the Honourable Apex Court has held that a Power of Attorney holder of the complainant who does not have personal knowledge cannot be examined. But where the Power of Attorney holder of the complainant is in charge of the business of the payee-complainant and the Attorney Holder alone is personally aware of the transaction, and the complainant is signed by the Attorney holder on behalf of the payee-complainant, there is no reason why the Attorney holder cannot be examined as the complainant.
14.Therefore, it is very clear that if power of Attorney holder of a complainant personally knows the alleged transaction entered into between the complainant and accused, he is a competent witness to speak about the same.
15.In the instant case, as stated earlier, the Power of Attorney holder has been examined as PW1.
In fact, this Court has closely perused his entire evidence and during the course of cross-examination, he has categorically stated that he knows the alleged money transaction entered into between the complainant and accused. Therefore, it is quite clear that Power of Attorney holder of the complainant is a competent witness to speak about the alleged transaction entered into between the complainant and accused and his evidence cannot be belittled.
16.The learned counsel appearing for the respondent/accused has accentuated the Court to look into the following decisions;
a)In 1993 Criminal Law Journal 2486 (Kerala High Court) (S.Ashok and another Vs. Sri Vasudevan Moosad), it has been held that no specific allegation made in the complaint to the effect that the concerned cheque has become bounced for want of sufficient funds, complaint is not maintainable.
b)In 2005 (3) CTC 480 (Y.Vijayalakshmi @ Rambha VS. Manickam Narayanan) this Court has held that filing of complaint by Power of Attorney on behalf of complainant is permissible but is obligatory for complainant to appear before Magistrate on future date but General Power of Attorney cannot depose either for payee or holder in due course.
The view taken in the decision reported in 2005 (3) CTC 480 (Y.Vijayalakshmi @ Rambha Vs. Manickam Narayanan) has been rejected by the Division Bench of this Court in the decision reported in 2006(4) CTC 333 (K.Gopalakrishnan Vs. Karunakarann rep. by the Power of Attorney Holder, Dhandapani).
c)In 2005(5) CTC 529, (S.Radha Krishanan Vs. S.v.Petha Perumal) this Court has held that Power of Attorney has authorized to step into shoes of payee and he is entitled to prefer complaint on behalf of his principal before Court so as to set law in motion. Magistrate directed to examine payee as principal witness either in person or by appointing Commission if necessary to decide main issue.
d)In 2005(3) CTC 128 (Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others) wherein the Division Bench of the Honourable Supreme Court has held that Power of Attorney holder may depose for the principal for the acts done by the principal and not by him.
17.It has already been pointed out that the Honourable Apex Court is of the view that a Power of Attorney holder of the complainant who does not have personal knowledge cannot be examined, but where power of attorney holder is in charge of the business of the payee-complainant and the Attorney holder alone is personally aware of the transaction and the complaint is signed by the Attorney holder on behalf of payee- complainant, he is a competent witness to adduce evidence.
18.In the instant case, as noted down earlier, PW1 has categorically stated in his evidence that he is the brother-in-law of the complainant and he is looking after his affairs and he personally knows the money transaction entered into between the complainant and accused. The specific dictum of the Honourable Apex Court is that if power of attorney holder personally knows the loan transaction, he can depose evidence. Therefore, viewing from any angle, according to the facts and circumstances of the present case, the Court can easily come to a conclusion that the Power of Attorney holder of the complainant viz., PW1 is a competent witness to speak about the alleged transaction entered into between the complainant and accused. The first appellate Court, without considering the entire evidence adduced by PW1, has erroneously set aside the conviction and sentence passed by the trial Court and also erroneously remanded the matter to trial Court.
19.In the light of the discussion made earlier, it is very clear that the argument advanced by the learned counsel appearing for the revision petitioner/complainant is really having subsisting force and whereas the argument advanced by the learned counsel appearing for the respondent/accused as well as the decisions cited on his side are not suitable to the facts and circumstances of the present case and altogether the present criminal revision case can be allowed.
20.In fine, this criminal revision case is allowed. Consequently, connected miscellaneous petition is closed. The judgment passed in Criminal Appeal No.99 of 2006 by the Additional District and Sessions cum Fast Track Court No.I, Tiruchirapalli is set aside and Criminal Appeal No.99 of 2006 is remitted to the file of the Additional District and Sessions cum Fast Track Court No.I, Tiruchirapalli and the Additional District and Sessions Judge (F.T.C.No.I), Tiruchirapalli is directed to dispose of Criminal Appeal No.99 of 2006 on merits.
gcg To
1.The Additional District and Sessions Judge, FTC No.I, Trichy.
2.The Judicial Magistrate NO.IV, Trichy.