TMI Blog2017 (4) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... anager of the Appellant/ Complainant Firm. In fact, in his evidence, he had admitted that he had not filed any license for the Appellant's Finance Firm to run the Finance Business. Even in the notice, complaint and in his chief examination and in Power Deed, P.W.1 had not stated that he knows about the money financial dealing details in a complete fashion. At best, atleast on behalf of the Appellant/Complainant, one of the Partners might have been examined before the trial Court in the main case. But that is not the position in the present case. The Account Book, separate Register, registered pertaining to the Appellant/ Complainant's Finance Company was not produced before the trial Court and marked as an Exhibit. In the present case, P.W.1 was examined on behalf of the Appellant/Complainant and since he had not appeared as a witness in his personal capacity, he could not appear as a witness on behalf of the Appellant/Complainant in the capacity of Complainant. Also that, before the trial Court, no documents were produced to show that within six months of commencement of its business, the Appellant/ Complainant had the capacity to lend a sum of ₹ 5,90,000/-. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its case against the Respondent/Accused that he had committed an offence under Section 138 of the Negotiable Instruments Act and acquitted him under Section 255(1) Cr.P.C. 4.Questioning the correctness of the Judgment of Acquittal delivered by the trial Court in S.T.C.No.206 of 2015 dated 02.11.2015, the Appellant/Complainant has filed the instant Criminal Appeal before this Court by taking a plea that the Respondent/Accused had not denied the Execution of Cheque and therefore, the onus to rebut the presumption naturally arises under Section 118 and 139 of the Negotiable Instruments Act, 1881. 5.According to the Learned Counsel for the Appellant/ Complainant, the Respondent/Accused had not explained as to how the Ex.P1 - Case Cheque came into the hands of the Appellant/ Complainant. Furthermore, the Respondent/Accused had not given any Reply to Ex.P3 Lawyer's Notice. 6.The Learned Counsel for the Appellant/Petitioner emphatically contends that the Power Agent (P.W.1) had deposed that he is aware of the transaction between the Appellant and the Respondent/Accused and therefore, the conclusion arrived at by the trial Court that P.W.1 (Power Agent - Selvaraj) had not esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness of money lending. 12.The Learned Counsel for the Appellant seeks in aid of the decision A.Gunasekaran V. P.Velusamy, 2014(1) MWN(Cr.) DCC 49 (Mad.), at special page 50 , whereby and whereunder, it is observed as under: The combined reading of the Sections 2(6) , 3 , 4 and 12 would lead to an interpretation that the definition of 'loan' and 'money lender' as defined under the Money Lenders Act is also applicable to 'loan' and 'a person' as referred to under Section 3 of the Tamil Nadu Act 38/2003. Non-obstante Clause in Section 4 is applicable only to penalty and the penalty imposed under section 4 is to be construed as in addition to penalty cause as provided under the Money Lenders Act. Similar view was expressed by the Division Bench of our High court in the judgment cited above. In the event of such interpretation, the advance made on the basis of negotiable instrument exceeding ₹ 10,000/- would not fall under the definition of 'loan' and fall outside the purview of the Act and the defence advanced by the accused for seeking quash is not available to the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 138 , 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom it on 07.09.2013 for his urgent Business needs, on the same day, towards discharge of his liability, to repay the debt, he issued a Post dated Cheque for ₹ 5,90,000/- dated 07.10.2013 (Cheque was drawn on The South Indian Bank, Erode bearing No.117389 issued in favour of the Appellant/Complainant). 19.It comes to be known that the cheque was presented for collection on 07.10.2013 by the Appellant/Complainant at his Bankers Indian Overseas Bank, Thirunagar Colony Branch, but the same got returned with memo as 'Funds Insufficient' on 08.10.2013. 20.It transpires that Ex.P3 Lawyer's Notice dated 01.11.2013 was issued by the Appellant/Complainant requiring the Respondent/ Accused to pay the due amount on the returned cheque amount within 15 days from the date of receipt of notice and the said notice was received on 08.11.2013. 21.In view of the fact the Respondent/Accused had failed to pay the amount due in question, a Complaint was filed by the Appellant/ Complainant in S.T.C.No.206 of 2015 on the file of the trial Court. A perusal of the Complaint in S.T.C.No.206 of 2015 on the file of the trial Court indicates that the Appellant/Complainant is a Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of registering the complaint in question/for issuance of process under Section 204 Cr.P.C. However, for further proceedings, a Complainant should be examined and in case of a Managing Partner or Working Partner of a Partnership Firm or if it is a Company or any other juristic individual, then, the said person authorised in this regard is quite competent to adduce evidence, as opined by this Court. No wonder, neither the Criminal Procedure Code nor the Negotiable Instruments Act, 1881 mentions that any one can depose for and on behalf of the Complainant. 26.It is to be pertinently pointed out that the ingredients of Section 190 Cr.P.C. clearly permits any person to approach the Learned Magistrate to prefer a complaint. No qualification is prescribed for an eligible person to file a complaint. Any one can set the Criminal Law in Motion by filing a Complaint of facts constituting an offence before the Learned Judicial Magistrate concerned, who is empowered to take cognizance. After all, the concept of 'Locus Standi' is ALIEN to Criminal Jurisprudence. As a matter of fact, an explicit assertion as to the knowledge of 'Power of Attorney Holder' about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are liable to suffer the sanction of Criminal Law. 32.Also that, in case of a Criminal Breach of Trust, Cheating, it was held that non registered firm had the right to criminal proceedings where an offence was completed, the prosecution proceedings could be initiated not for recovery of amount covered by the cheque but for bringing the offender to penal liability, as per decision Gurucharan Singh V. State of U.P. III 2002 B.C. 164 (All.). In fact, the bar created under Section 69(2) of the Indian Partnership Act, 1932 applies to 'Suit' only. It has no application for maintaining criminal proceedings under Section 138 of the Negotiable Instruments Act. 33.In fact, the filing of a Complaint in respect of an offence under Section 138 of the Negotiable Instruments Act is permissible through Holder of Power of Attorney, the Complainant, but if the Complainant alone was a witness of the transaction, then, Complainant had alone make a statement as required under Section 200 Cr.P.C. in support of the complaint. However, if the transaction was witnessed by 'Holder of Power of Attorney' himself as an Agent of Payee, then, Power of Attorney alone could be a witness a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere presentation of cheque nor mere dishonour of cheque alone, real cause of action is non payment of cheque amount or non compliance of demand through notice by the 'Drawer' within the statutory period. 38.In this connection, this Court aptly points out that as per Section 34 of the Indian Evidence Act, 1872 a 'Book of Account' must be a fool proof one. An entry in an Account Book regularly kept is of immense value only to establish that the entry was made at the time of the transaction. There is no particular form of Account Book is prescribed. But the said book must be of a regular and usual account book which explains itself and appears on its face, to create a liability in an account with the party against whom it is offered. Moreover, an individual making the entries should have personal knowledge of the facts stated therein. 39.Ordinarily, the entries in Books of Account, regularly kept in the course of business, are relevant in all proceedings in a Court of Law but, these entries are not by themselves sufficient to charge any person with liability. Only an individual is to prove by some other independent corroborative evidence that the transaction in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered opinion of this Court. Before the trial Court, P.W.1 in his cross examination, had stated that he had not produced any document to show that he continues to be the Manager of the Appellant/ Complainant Firm. In fact, in his evidence, he had admitted that he had not filed any license for the Appellant's Finance Firm to run the Finance Business. Even in the notice, complaint and in his chief examination and in Power Deed, P.W.1 had not stated that he knows about the money financial dealing details in a complete fashion. At best, atleast on behalf of the Appellant/Complainant, one of the Partners might have been examined before the trial Court in the main case. But that is not the position in the present case. The Account Book, separate Register, registered pertaining to the Appellant/ Complainant's Finance Company was not produced before the trial Court and marked as an Exhibit. 42.In the present case, P.W.1 was examined on behalf of the Appellant/Complainant and since he had not appeared as a witness in his personal capacity, he could not appear as a witness on behalf of the Appellant/Complainant in the capacity of Complainant. Also that, before the trial Court, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and in accordance with Law. The trial Court is directed to provide an adequate opportunity to the Appellant/ Complainant to examine any one of the Partners as its witness or more number of Partners as witnesses on its side to show that the Appellant /Complainant had advanced money to the Respondent/Accused. Liberty is granted to the Appellant/Complainant to mark Account Books, or the Ledger entries of the Account Books through a competent witness like the Accountant of the Company to speak about the purported loan transaction. Suffice it for this Court to point out that it is open to the respective sides to raise all factual and legal pleas before the trial Court at the fresh hearing of the S.T.C.No.206 of 2015. The trial Court shall permit the Respondent/Accused to adduce rebuttal evidence by examining fresh witness/witnesses and to mark document(s) in the main case. It is needless for this Court to point out that the trial Court, in any event, shall dispose of the main case with a clear-cut, free, open and unbiased mind and that too in a dispassionate and an objective manner [of course, after providing enough opportunities to both sides by adhering to the principles of Natural ..... X X X X Extracts X X X X X X X X Extracts X X X X
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