IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 12.11.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1040 of 2010 & M.P.Nos.1 & 2 of 2010 Premchandarkumar .. Petitioner/Accused Vs 1.G.Jayanthi Rep. by Power Agent Soundararajan No.9, Ambikanagar Thudiyalur Coimbatore 2.The State rep. by The Public Prosecutor Coimbatore .. Respondents/Complainant PRAYER: Criminal Revision Case filed under section 482 of Criminal Procedure Code to set aside the order passed in C.A.No.109 of 2010 on the file of the Additional District Judge F.T.C.No.II, Coimbatore dated 14.09.2010 confirming the judgment passed in S.T.C.No.411 of 2008 on the file of the Judicial Magistrate No.I, Coimbatore dated 17.05.2010. For Petitioner : Mr.K.Kalyanasundaram ----- ORDER The arguments advanced by Mr.K.Kalyanasundaram, learned counsel for the petitioner were heard. The grounds of revision and the other materials placed before the Court in the form of typed-set of papers, which includes the copies of judgments of the Courts below, were also perused. 2. The petitioner herein was prosecuted by the first respondent herein in S.T.C.No.411 of 2008 on the file of the Judicial Magistrate No.I, Coimbatore for an alleged offence under Sections 138 of the Negotiable Instruments Act based on the dishonour of two https://hcservices.ecourts.gov.in/hcservices/ cheques issued by the petitioner in favour of G.Jayanthi, the first respondent for a sum of Rs.1,00,000/- and Rs.1,29,500/- respectively. The first one was dated 10.07.2007 and the second one was dated 23.07.2007. When both the cheques were presented for collection, the first cheque was returned unpaid with the endorsement that there was "no sufficient fund" in the account and the second cheque was returned with the endorsement "account closed". The above said dishonoured cheques have been produced and marked as Exs.P3 and P5 respectively. Return Memo has been produced and marked as Ex.P4. 3. Subsequently, within the period prescribed in the Negotiable Instruments Act, a notice intimating the dishonour of the cheques and calling upon the petitioner to make payment of the cheque amount was issued under Ex.P7. The service of the said notice is evidenced by Ex.P8 acknowledgment. Even after the receipt of the said statutory notice, the petitioner failed and neglected either to issue a reply or to make payment as demanded in the notice. Consequently, a complaint was filed by the first respondent through her power attorney holder Soundararajan under Section 200 Cr.P.C. 4. The said Soundararajan, who figured as the sole witness, was examined as PW1 and Exs.P1 to P8 were marked on the side of the complainant. No documentary or oral evidence was adduced on the side of the petitioner (accused). The learned Judicial Magistrate considered the evidence and held the petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act. Accordingly, he was convicted with one year rigorous imprisonment and a fine of Rs.5000/- with a default sentence to undergo simple imprisonment for one month in default of payment of fine. 5. The said judgment of conviction and the order of sentence were challenged by the petitioner unsuccessfully before the learned Additional District Judge, FTC No.II, Coimbatore in Crl.A.No.109 of 2010. After re-appraising the evidence and considering the points raised by both sides, the learned appellate Judge concurred with the trial Magistrate and dismissed the appeal confirming the conviction and sentence. Now the petitioner has come before this Court with the present criminal revision case questioning the propriety and legality of the judgment of the appellate Court confirming the conviction and sentence. 6. Challenging the concurrent findings of the courts below regarding the guilt of the accused and also the sentence, the petitioner has raised the following contentions:- i)The cheques were not issued for a legally enforceable liability ii)The complaint was not preferred by the payee. On the other hand, it was preferred by the Power of Attorney holder of the payee. The payee did not enter the witness box and it was the https://hcservices.ecourts.gov.in/hcservices/ Power of Attorney holder who entered the witness box and deposed against the petitioner. 7. So far as the first contention of the petitioner is concerned, it is the case of the petitioner that there was a contract between the petitioner and the first respondent, under which the first respondent had undertaken to supply yarns for which purpose the petitioner had issued the cheques in question; that after the cheques were received, the first respondent failed to supply yarns and that hence the cheques in question could not be construed to be the cheques issued in discharge of a legally enforceable debt or a legally enforceable liability. This Court is at a loss to understand as to the scope of a legally enforceable liability as conceived by the learned counsel for the petitioner. The contention of the learned counsel for the petitioner is based on the assumption that a promise made against a promise by the other party, which is yet to be executed, cannot be legally enforced, unless the other party has fulfilled the promise made by him. The said contention, according to the considered view of this Court, is untenable and cannot be countenanced. Of course, it is true that under the explanation to Section 138 of the Negotiable Instruments Act, it has been stated that a debt or a liability means a legally enforceable debt or other liability. Here the cheques are not intended to be issued in discharge of a debt. On the other hand, even as per the petitioner's case, the cheques were issued in fulfillment of the promise made by the petitioner corresponding to the promise made by the first respondent to supply yarns. Therefore, it cannot be said that the cheques were not issued for legally enforceable liability. Under a contract, a party to the contract can enforce the liability of the other party even before fulfilling his part of the promise. But what is required of such a party seeking to enforce the liability of the other party to the contract, is that he must be ready and willing to perform his part of the contract. The explanation for debt or liability as legally enforceable debt or legally enforceable liability appended to Section 138 of Negotiable Instruments Act shall mean that the debt in discharge of which the cheque has been issued should not have been barred by limitation or the recovery of which has been barred any other provision of law. Similarly, a liability either contractual or otherwise, should not be one, the enforceability of which is either prohibited or disallowed by law. By no stretch of imagination the liability of a party to a contract can be said to be unenforceable, simply because the obligations under the contract by the person seeking to enforce the obligation of the other party remains executory. It is not the case of the petitioner that the contract between the petitioner and the first respondent, in pursuance of which the cheque was issued, was either illegal or opposed to public policy with the result that the same shall be unenforceable as per the provisions of the Contract Act. https://hcservices.ecourts.gov.in/hcservices/ 8. For all the reasons stated above, this Court is of the considered view that the first contention raised by the petitioner deserves discountenance and the Courts below have rightly rejected the said contention. 9. So far as the second contention is concerned, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme in Mrs. Janki Vashdeo Bhojwani & Another Vs.The Indusind Bank Limited & Others reported in 2005 (2) SCC 217. The same is not relevant to the facts of the case on hand. Therein the Hon'ble Supreme Court has held that no one can depute a person with a Power of Attorney to depose on his behalf, when he himself has to come and depose. It has also made an observation to the effect that the Power of Attorney holder's power to depose in place of the principal, extends only to the depositions in respect of acts done by Power of Attorney holder in exercise of power granted by the instrument and that such act would not include deposing in place of and instead of principal for acts done by the principal and not by the Power of Attorney holder. 10. In the present case the complaint itself was preferred through PW1, the Power of Attorney holder of the first respondent under Section 200 Cr.P.C. The complainant's sworn statement has to be recorded before taking cognizance of the case. Who is the complainant? There is no specific definition in the code. The question of maintainability of a complaint for an offence under Section 138 of the Negotiable Instruments Act by the Power of Attorney holder of the payee came to be considered by a Division Bench of this Court in K.Gopalakrishnan Vs.Karunakaran, rep. by the Power of Attorney Holder, Dhandapani reported in 2006 (4) CTC 333. In the said judgment clear observations were made to the effect that the term 'complainant' is not found defined in Criminal Procedure Code or the Power of Attorney Act and the term complainant means the person, who presents the complaint to the Court or makes the oral complaint to the Court and that therefore, for taking cognizance of the offence under Section 200, the statement of the person, who presents the complaint in writing or the person who makes the oral complaint shall be the proper course to be adopted. 11. The observation made by a learned single Judge of this Court (S.R.Singharavelu. J) in Y.Vijayalakshmi @ Rambha V. Manickam Narayanan, Proprietor, Seventh Channel Communications rep. by its Power of Attorney Agent, Thanigaivelan, reported in 2005 (3) CTC 480 to the effect that a complaint shall be signed by the payee himself and not by the Power of Attorney holder; that an affidavit in proof of execution of power of attorney besides the production of the deed of power of attorney shall be filed; that the sworn statement of the power of attorney holder can be recorded on the date of presentation of the complaint; and that the sworn statement of the complainant https://hcservices.ecourts.gov.in/hcservices/ (payee) also shall be recorded by the Judicial Magistrate on a future date has been disproved by the above said judgment of the Division Bench of this Court wherein it has been clearly held that when the complaint is signed by the Power of Attorney and it is presented by the Power of Attorney holder, for all practical purposes he shall be construed to be the complainant and examination of such Power of Attorney holder under Section 200 to take cognizance of the complaint shall be proper. The said judgment of the Division Bench was based on the observations of the Hon'ble Supreme Court in M.M.T.C. Ltd., V. M/s.Medchl Chemicals Pharma (P) Limited., reported in 2002 Criminal Law Journal 266. The Division Bench held that when such a complaint is given, it is not mandatory that the general Power of Attorney should be filed initially and that even though the general Power of Attorney holder, at the initial stage, failed to produce the deed of power of Attorney or the affidavit of the complainant in proof of execution of Power of Attorney, the same is only an irregularity, which could be rectified by producing the same at a later stage of the proceedings as and when the validity of the Power of Attorney shall be questioned. The same will go to show that a complaint preferred by the Power of Attorney holder cannot be termed incompetent and for that reason alone, the contention of the learned counsel for the petitioner that the conviction recorded and the sentence imposed on the petitioner are defective, cannot be accepted. The mere fact that the principal, namely the payee had not enter the witness box to depose shall not be the ground on which the complaint shall be rejected or the accused shall be acquitted. When it is proved that the cheque was issued in discharge of a debt or other liability, which is legally enforceable, then the presumption under Section 139 of the Negotiable Instruments Act, will be drawn and it is for the accused to prove the contrary. 12. In this case, it is pertinent to note that the petitioner not only failed to issue any reply to the statutory notice, but also failed to lead any evidence to rebut the statutory presumption. It should also be noticed that the first cheque was returned with the endorsement that there was "no sufficient fund" in the account. The second cheque was returned with endorsement "account closed". Both the endorsements indicate that there was no sufficient funds for honouring the cheque and the amount sought to be paid out of the account exceeded the arrangement made by the petitioner with his banker. For all the reasons state above, both the contentions raised by the learned counsel for the petitioner deserves discountenance. There is no defect or infirmity in the concurrent finding of the Courts below warranting any interference by this Court, either on the question of conviction or on the question of sentence. Therefore, this Court comes to the conclusion that the criminal revision case deserves to be dismissed at the stage of admission itself even without notice to the other side. https://hcservices.ecourts.gov.in/hcservices/ 13. Accordingly, this petition is dismissed. Consequently, the connected miscellaneous petitions are closed. gpa Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Additional District Judge F.T.C.No.II, Coimbatore 2.Do Through The Principal District Judge, Coimbatore. 3. The Judicial Magistrate No.I, Coimbatore 4.Do Through the Chief Judicial Magistrate, Coimbatore 5.The Public Prosecutor Coimbatore 6.The Public Prosecutor Madras High Court Chennai + 1 cc to Mr. K. Kalyanasundaram, Advocate SR No.81313 Crl.R.C.No.1040 of 2010 & M.P.Nos.1 & 2 of 2010 MBS(CO) SR/7.12.2010 https://hcservices.ecourts.gov.in/hcservices/