The petitioner/accused has filed the above Criminal Original Petition to call for the records relating to C.C.No.273 of 2002 on the file of the learned Judicial Magistrate No.I, Pollachi and quash the same.
2. The respondent's case is that he has filed C.C.No.273 of 2002 against the petitioner/accused person on an alleged offence under Sections 138 of Negotiable Instruments Act and 420 of IPC stating that the petitioner had borrowed money, a sum of Rs.1,00,000/-, as loan with interest at the rate of 2% per month. The said loan was paid to the petitioner by way of cheque. For repaying the said loan, the petitioner/accused sent a cheque for a sum of Rs.1,00,000/- dated 05.02.2002 to and in favour of the respondent/complainant herein. The cheque was drawn on Canara Bank, Somandurai Branch. Along with the cheque, the petitioner sent a letter stating that she will come and pay the interest in person against the release of pronote which was executed at the time of getting the loan from the complainant's company.
3. The complainant presented the cheque on 08.02.2002 through his bankers namely Tamil Nadu Mercantile Bank, Pollachi Branch. The same was returned on 13.02.2002 with an endorsement stating that 'insufficient funds' in the petitioners bankers namely Canara Bank Branch, Somandurai. Subsequently, the complainant sent a legal notice on 25.02.2002 and asked the petitioner to pay the cheque amount within 15 days from the date of receipt of the notice. The said notice was received by the petitioner on 28.02.2002. After receipt of the legal notice, the petitioner neither paid the cheque amount nor sent a reply to the complainant. Thereafter, the complainant filed the complaint before the learned Judicial Magistrate No.I, Pollachi, on an alleged offence under Sections 138 of Negotiable Instruments Act and 420 of IPC. Along with the said complaint, the complainant has filed seven documents and mentioned two witnesses.
4. The learned Judicial Magistrate, Pollachi has taken the case on his file and issued summons to the petitioner/accused person.
5. The petitioner contended in her petition that on 14.02.2002, the petitioner had given a cheque for Rs.1,00,000/- to discharge the liability. When the cheque was presented for collection, it got dishonoured for the reason, "signature differs", and that since the amount was not repaid in spite of notice, the complaint was filed. The petitioner further submitted that the Negotiable Instruments Act does not authorise a Power of Attorney to file a complaint, but in this case, the complaint was signed and filed by the Power of Attorney which is impermissible in law, and hence the complaint is liable to be quashed.
6. The petitioner pointed out that as per the judgment of the Honourable High Court, the complaint filed by a Power of Attorney ought to have been signed by the complainant himself and the Power of Attorney has no authority to sign and peruse the case. But, in this case, the complaint has been signed by the Power of Attorney. Therefore, the complaint is not valid in the eyes of law. Further, the complainant has not followed the mandatory provisions before filing the complaint.
7. The legal notice issued by the complainant is defective and not sustainable in law. Further, the petitioner submitted that she and her husband had deposited a sum of Rs.3 lakhs to the complainant's finance company. On the demand of the respondent, the petitioner and her husband gave blank cheques and signed papers.
8. The Court has gone through the contentions of the petitioner and the respondent and heard the arguments of the learned counsel for both the sides, and also perused the judgment, relied on by the respondent's counsel, which is reported in (2008) Vol.8, Supreme Court Cases, 536 (Shankar Finance and Investments ...vs... State of Andhra Pradesh and Others).
9. Considering the facts and circumstances of the case and after hearing the arguments of both the sides, and perusal of the judgment given by the respondent's counsel, the Court is of the view that the said C.C.No.273 of 2002 has been taken by the learned Magistrate on his file, after applying his mind. Further, the case is at the trial stage. Further, the respondent/complainant can file the complaint through Power of Attorney. Hence, the Court is not warranted to interfere with the proceedings in C.C.No.273 of 2002 on the file of the learned Judicial Magistrate No.I, Pollachi. Accordingly, the Criminal Original Petition has got to be dismissed and it is dismissed. Consequently, connected Miscellaneous Petition is closed.