IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 24.11.2018 CORAM THE HONOURABLE Mr.JUSTICE K.KALYANASUNDARAM Crl.A.No.436 of 2004 Prakash, Rep. by Power Agent Mr.Anbazhagan, No.23, Kongu Nagar, Karungal Palayam, Erode - 3. ..Appellant/Respondent/Complainant Vs C.Rajaeswari Proprietor, Venkatesvarer Terry Mills, Nasiyanur (P.O.), Erode -7. ..Respondent/Appellant/Accused Prayer:- This Criminal Appeal is filed under Section 378 of Cr.P.C. to set aside the order of Acquittal dated 14.08.2003 made in C.A.No.62 of 2002 passed by the I Additional Sessions Judge, Erode and confirm the judgment of conviction dated 20.03.2002 made in C.C.No.597 off 1997 by the Judicial Magistrate No.I, Erode. For Appellant : Mr.J.Sivanandaraj For Respondent : Mr.S.Shanmuga Velayutham, S.C. for Mr.V.Srinivasa Babu JUDGEMENT This appeal has been preferred against the judgment of the I Additional Sessions Judge, Erode, passed in Criminal Appeal No.62 of 2002 dated 14.08.2003. 2. The appellant is the complainant in a private complaint filed under Section 138 of the Negotiable Instruments Act. The case of the complainant is that on 17.04.1997, the accused borrowed a sum of Rs.2,00,000/- as hand loan from the complainant and in order to discharge her liability, a cheque, dated 17.05.1997 bearing No.001953 was issued. When the cheque was presented on 13.10.1997, it was dishonoured for the reason that payment stopped. On 16.10.1997, the complainant caused a notice through his counsel. Since the cheque amount was not paid, the complaint came to be filed. 3. The case of the accused before the Trial Court was that the complainant is doing business in the names of Premier Textile Mills, Premier Creations and Shree Aravinth Exports and the accused in the course of business transaction issued the cheque as security and discharged the entire liability. She did not borrow hand loan from the complainant and hence she need not pay any amount under the cheque. 4. In order to prove the case, one Anbalagan, Power Agent of the complainant was examined as PW1 and one Velusamy was examined as PW2 and Exs.P1 to P7 were marked. The accused examined herself as DW1 and produced documents Exs.D1 to D6. 5. The Trial Court after considering the oral and documentary evidence, held that the accused is liable to pay the cheque amount and convicted her and sentenced to undergo one year simple imprisonment and imposed a fine of Rs.5,000/-, in default, to undergo simple imprisonment for two months. 6. Challenging the above conviction and sentence, the accused preferred an appeal in C.A.No.62 of 2002 before the I Additional Sessions Judge, Erode. The Appellate Court acquitted the accused holding that the Power Agent, PW1, did not have personal knowledge of the transaction between the accused and the principal and the complainant failed to produce the books of accounts as per the order of the learned Magistrate in Crl.M.P.No.133 of 1999. Assailing the judgment of acquittal, the present appeal has been filed. 7. The learned counsel for the appellant would urge that the accused has not disputed issuance of cheque in favour of the complainant and there was no reply to the notice issued by the complainant and hence, as per the decisions of the Hon'ble Supreme Court reported in 2001 (8) SCC 458 (K.N.Beena vs. Muniyappan and another) and in 2010 (11) SCC 441 (Rangappa vs. Sri Mohan), presumption has been drawn against the accused and the order of acquittal is liable to be set aside. 8. It is further contended by the learned counsel for the appellant that by the order of the learned Magistrate irrelevant documents were directed to be produced and as per the decisions of this Court reported in 2004 (4) CTC 729 (Natarajan vs. Marappa Gounder) and Criminal Appeal Nos.387 to 396 of 2006, dated 24.04.2015 in Indiankannon.org/doc/48756510/, adverse inference cannot be drawn in for such non production. 9. Per contra, the learned Senior Counsel appearing for the respondent would argue that indisputably, the complaint came to be filed by the Power Agent and in the course of evidence, Power Agent himself admitted that he had no personal knowledge about the transaction between the principal and the accused and, PW1 has further admitted that the documents sought for by the accused would reveal as to whether the liability was discharged by the accused. 10. It is submitted by the learned Senior Counsel appearing for the respondent that the documents sought for by the accused are relevant to prove that there was business transaction between the accused and the complainant and in the course of transaction, the accused has discharged her entire liability. Hence, the Appellate Court has rightly drawn adverse inference for non-production of the documents. 11. The learned Senior Counsel further submitted that this is an appeal against acquittal, and when finding is based on the evidence and if two views are possible, one supporting the acquittal and another in favour of conviction, the High Court would not interfere merely because other view is possible. In support of his contentions, he relied upon the judgment of the Supreme Court reported in 2002 (1) SCC 71 (Kashiram and Others vs. State of M.P.), wherein in paragraph 21, it has been held as follows: "21. We find the judgment of the High Court suffering from several infirmities. The High Court was dealing with an appeal against acquittal. Though the High Court while hearing an appeal against an acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is -- if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial Court its view would have been one of recording a conviction. It follows as a necessary corollary, as has been held by this Court in Chandu v. State of Maharashtra it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court." 12. In the case on hand, it is not disputed that the complaint was filed through the Power Agent. According to the complainant, the accused had borrowed a sum of Rs.2,00,000/- on 17.04.1997 and the cheque was issued on 17.05.1997 to discharge the liability. The defence taken by the accused was that there had been continuous business transaction between the accused and the complainant and in the course of the business, cheque was issued as a security and the accused never borrowed hand loan from the complainant. 13. It is pertinent to note that the accused had taken up an application before the Trial Court in Crl.M.P.No.133 of 1999 under Section 91 Cr.P.C., seeking direction to the complainant to produce Ledger, Day book and Bill book for the years 1995-96, 1996-97 and 1997-98, but the complainant failed to produce those documents. 14. It is the case of the appellant that the complainant has produced a ledger for the year 1997-98 and the other documents are irrelevant and hence, those documents were not produced. Therefore, Court cannot draw adverse inference. I am not able to agree with the submissions of the learned counsel for the appellant for the reason that the accused has taken a specific defence that there was no money transaction between them and in the business transaction, cheque was issued and in order to establish her defence, the documents were sought to be produced. The appellant instead assailing the order stating that they are alien to the issue, by no stretch of imagination can be permitted to say that they are irrelevant documents. 15. There is no dispute with regard to the proposition laid down in the judgments of the Supreme Court reported in 2001 (8) SCC 458 and 2010 (11) SCC 441 cited supra, wherein it is observed the Court has to draw presumption that the cheque had been issued for discharging a debt or liability in view of the provisions of Sections 118 and 139 of the Negotiable Instruments Act. However, in the case on hand, the cheque was dishonoured on 13.10.1997. The accused sent a letter Ex.D5 categorically stating that there was no liability existing between them and the accused requested the complainant to return the cheques by mentioning the numbers. When such a stand was taken under Ex.D5 that there was no liability existing between them, onus is on the complainant to prove that there is legally enforceable debt under the dishonoured cheque. In my considered view, the documents sought for by the accused are relevant and an adverse inference was rightly taken for non-production of the documents. 16. Perusal of the evidence of PW1 would show that he was the Power Agent of Prakash Jain, who is running three concerns in the names of Premier Textile Mills, Premier Creations and Shree Aravinth Exports. PW1 did not have personal knowledge about the transaction except the issuance of the cheque. The evidence of PW1 in cross examination would run thus: ".... vjphp bkhj;jkhf vj;jid brf; bfhLj;J vt;tst [ U:gha; fld; th';fpa[s;shh;fs; vd;W vdf;F bjhpahJ/ ,e;j tHf;F fhnrhiyfs; kl;Lk; jhd; vdf;F bjhpa[k;/ bkhj;jk; vj;jid brf;fpw;Fz;lhd bjhifia bfhLj;Js;shh;fs; vd;w tptuk; vdf;F bjhpahJ/ ,e;j fhnrhiyfis tR{ypw;F nghLtjw;F Kd;g[ ,e;Jghyh vf;; ;! ;nghh;l;!; epWtdj;jpw;F 13/10/1997y; vjphp xU nehl;o!; bfhLj;Js;shh; vd;why; vdf;F bjhpahJ/ 23. bfh';Fefh;. fU';fy;ghisak; vd;w tpyhj;jpy; g[iug;giul;lh; kJ FoapUf;fpwhh;/ me;j ml;urpy; cs;sJ rhp jhd;/ m';F xU yl;lh; te;jJ vd;why; mJ vdf;F bjhpahJ/ v';fspd; tpahghuj;jpy; nl g[f;. byl;$h;. nf!; gpy;. fphpol; vy;yhk; bka;d;ild; gz;zpf; bfhz;L tUfpnwhk;/ me;j Mtz';fis jhf;fy; bra;jhy; brf;fpw;Fz;lhd bjhifia tN:y; Mfp ,Uf;Fk; vd;gJ bjhpatUk;/ gphpkpak; fphpnard;!; vd;w tpyhrj;jpy; bjhHpy; bra;J tUfpwhh;/ gphpkpak; blf;!;ily;!; kpy; vd;w bgahpy; thjp bjhHpy; bra;J tUfpwhh;/ ,e;j K:d;W epWtd';fspYk; gpufhc;& b$apd; vd;gth; jhd; tpahghuj;ij ftdpj;J tUfpwhh;/ ,e;j K:d;W epWtd';fSf;Fk; t';fp mf;ft[d;l; g";rhg; nerdy; t';fp jhd;/ ,ijj; jtpu bg';fS:hpy; thjp bgahpy; mhpad; vf;!;nghh;l;!; vd;w bgahpy; bjhHpy; bra;J tUfpwhh; vd;why; vdf;F bjhpahJ/ mij gpufhc;& b$apd; rnfhjuh; ghh;j;J tUfpwhh; vd;why; vdf;F bjhpahJ/ rp/rp/216-98y; byl;$h;. nl g[f; jhf;fy; bra;Js;nsd;/ mry; cz;ik efiy jhf;fy; bra;atpy;iy/ ml;l!;nlrd; ifbaGj;J th';fp jhd; jhf;fy; bra;Js;nsd;/ th/rh/M/1 Kjy; 3 tiu Fwpg;gplg;gl;Ls;sJ/ nfrpw;fhf bgha;ahf jhf;fy; bra;ag;gl;Ls;sJ/ mjpy; cs;s ml;l!;nlrd; bgha;ahdJ vd;W brhd;dhy; rhpay;y/ ,d;tha;!; gpy;ypy; cs;s ifbaGj;J vjphpapd; fzthpd; ifbaGj;J my;y/ gp3y; cs;s ifbaGj;J ahUilaJ vd;W bjhpahJ/ vjphpapDila rpg;ge;jpfs; nghl;L , Ug;ghh;fs;/ 1/4/97 Kjy; 31/3/98 tiu K:d;W tUlj;jpw;fhd byl;rh; fhg;gp gp1 Kjy; gp3 mry; v';fs; epWtdj;jpy; cs;sJ/ K:d;W brf;Ffspy; fz;Ls;s bjhifia vjphp bfhLf;f ntz;oaJ ,y;iy/ mjw;F vjphpf;F bghWg;g[ ,y;iybad;W brhd;dhy; rhpay;y/ 13/10/97y; vjphp mwptpg;g[ bfhLj;jJ gw;wp vdf;F bjhpahJ/ vjphpf;Fk; v';fSila chpikahsUf;Fk; Vw;gl;l tut[ bryt[ vdf;F bjhpahJ vd;W brhd;dhy; rhpay;y/ vd; Kjyhsp Chpy; jhd; cs;shh;/ cly; epiy ed;whfj; jhd; cs;sJ/ ,e;Jghyh vd;gth; Chpy; jhd; cs;shh;/ mtUk; ed;whfj; jhd; cs;shh;/ K:d;W tHf;fpdpy; fz;Ls;s brf; bjhifiaa[k; ng';f; K:ykhf thjpf;F bfhLj;Jtpl;lhh; vd;W brhd;dhy; rhpay;y/ vjphp K:d;W brf;FfSf;Fk;. kw;w brf;Ffisa[k; jpUg;gp mDg;gr; brhy;yp gjpt [ jghy; mDg;gpa[k; bgw;Wf;bfhs;shky; ntz;Lbkd;nw bgw;Wf;bfhs;shky; jpUg;gpa[k; mjd; cila r';fjpia bjhpe;J bfhz;Lk;. ,e;j tHf;if nghl;Ls;shh; vd;W brhd;dhy; rhpay;y/ v';fs; Kjyhspf;F t!;jpkhd;; vd;w ez;gh; ,Uf;fpwhh; vd;why; vdf;F bjhpahJ/ thjpapd; tut[ bryt[ Fwpj;J brhy;tjw;F vdf;F mUfij ,y;iybad;Wk; gpufhc&; b$apdpw;Fj;jhd; mUfij cz;L vd;Wk; brhd;dhy; rhpay;y/ v';fSila Kjyhsp tUkhd thp. tpw;gid thp brYj;jp tUfpwhh;/ me;j fzf;Ffspy; vjphpfSf;F bfhLj;j bjhiff;Fz;lhd fzf;F te;Js;sjh vd;gJ vdf;F bjhpa[k;/ me;j fzf;Ffis nfhh;oy; M$h;gLj;jpdhy; cz;ikahd fzf;F bjhpe;JtpLk; vd;W kiwj;Jtpl;nld; vd;W brhd;dhy; rhpay;y/ ve;j yagypl;oa[k; ,y;yhky; vjphpapd; kPJ tHf;F nghl;Ls;nsd; vd;W brhd;dhy; rhpay;y/ vjphpf;F jpUg;gp mDg;g ntz;oa fhnrhiyfis itj;J vjphpapd; kPJ bgha; tHf;F nghl;Ls;nsd; vd;W brhd;dhy; rhpay;y/ vd;Dila Kjyhsp gpufhc;&b$apd; ,e;j tHf;fpy; rhl;rp brhy;Ythh;/ tprhhpf;fg;nghfpnwhk;;/ mtiu tprhhpj;jhy; cz;ik bjhpa [k; vd;W jhd; mtiu ,Jehs; tiu tprhhpf;ftpy;iybad;W brhd;dhy; rhpay;y/ gpuhjpy; brhy;ypago vjphp ve;j ruf;Fk; th';ftpy;iy vd;Wk; brf; bfhLf;ftpy;iybad;Wk; brhd;dhy; rhpay;y/ Vw;fdnt gzk; brYj;jpa fhnrhiyfis itj;Jf; bfhz;L nkhroahf tHf;F jhf;fy; bra;Js;nsd; vd;W brhd;dhy; rhpay;y/ //// 17. It is settled law that a Power Agent may be allowed to file, appear and depose before the Court in respect of the offence punishable under Section 138 of the Negotiable Instruments Act. It is also equally well settled if the Power Agent, who does not have personal knowledge about the transaction between the principal and the accused, is not competent to give evidence. 18. In 2014 (11) SCC 790 (A.C.Narayanan vs. State of Maharashtra and another), the Hon'ble Supreme Court in paragraph 31, has held as follows: "31. In view of the discussion, we are of the opinion that the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a proprietary concern, the complaint can be filed: (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the "Payee"; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor." 19. It is evident from the deposition of PW1, he has no personal knowledge about the transaction between the complainant and the accused. In the light of the undisputed facts narrated supra and the principles laid down in the decision of the Supreme Court, it would not be appropriate to convict the accused relying upon the evidence of PW1. 20. For the foregoing reasons, I find no reason to interfere with the judgment of the Appellate Court. In such view of the matter, the judgment of the Appellate Court is confirmed. The appeal fails and the same is dismissed. Sd/- Assistant Registrar (CS-IV) //True Copy// Sub Assistant Registrar pvs To 1.The I Additional Sessions Judge, Erode. 2.The Judicial Magistrate No.I, Erode. Crl.A.No.436 of 2004 MR(CO) GN(28/02/2019)