TMI Blog2015 (2) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... n agreement deed authorizes the payee for presentation of the postdated cheques issued towards installment payments of the loan amount. That being so, it is clear that the cheque in question was taken as security to the loan amount which had to be paid in installments - There is no evidence from his side about the actual amount due after the vehicle in question was seized. Basic requirement of offence under Section 138 of the N.I. Act, is, the Cheque ought to have been issued for discharge in whole or in part of any debt or other liability, but that is not established by the complainant. It needs to be asserted that the case of the appellant fails for another reason also i.e. not making out a case for an offence punishable under Section 138 of N.I. Act. and the impugned judgment does not call for interference - Appeal dismissed. - Criminal Appeal No. 2722/2009 - - - Dated:- 11-2-2015 - Rathnakala, J. For Appellant: Vinod S. Pawar, Adv. For Respondents: Vijay Malali, Adv. for Hegde Neeralagi and Patil JUDGMENT Rathnakala, J. 1. This appeal is filed assailing the judgment of acquittal recorded by the learned Magistrate in dismissing the complaint filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pothecation agreement: the complainant cannot invoke Section 138 of N.I. Act and the witness P.W. 1 had not produced original authorization letter in favour of the Director, who authorised him to file the complaint, hence the complaint is not maintainable. 5. Learned counsel for the appellant Sri Vinod S. Pawar, submits that the demand notice was refused by the accused; though she was served by the Certificate of Posting, she has not replied to the notice. Her signature on the cheque and also the fact that the cheque is issued from her account is not disputed by her. Admittedly, she has issued the cheque towards the outstanding loan availed while purchasing the vehicle. Of course, on her failure to repay the amount, the vehicle was seized and she has issued the cheque for ₹ 60,000/- towards difference of outstanding loan amount. There is no bar to invoke the N.I. Act, despite availability of a civil remedy. The trial Court gave undue weight to the fact that original G.P.A. is not produced, but the complainant - Company being a non-banking public limited finance institution engaged in vehicle finance business, prosecuting similar complaints in various courts cannot produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OWER OF ATTORNEY A draft Power of Attorney proposed to be issued to Sri R. Srihdar, Managing Director, duly initialed by the Chairman for the purpose of identification, was tabled. It was RESOLVED THAT subject to the overall limit available to the Board, a general Power of Attorney be issued to Sri R. Sridhar, Managing Director to perform various activities on behalf of the Company. RESOLVED FURTHER THAT Sri R. Sridhar, Managing Director be and is hereby authorized to issue limited Power of Attorney in favour of the Executives and Managers in charge of the branches in matters relating to the operations of the company. 9. Learned Magistrate non suited the complainant for more than one reason i.e. complaint not disclosing the specific amount due by the accused to the complainant, PW-1's ignorance about the amount for which vehicle was sold (in fact there was no such expression in the cross examination evidence of PW-1), non production of GPA executed by the Board of Directors in favour of PW-1 and want of proof of his employment with the complainant's company, non production of original G.P.A. executed in favour of Mr. Venkatesh, who presented the complaint, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case. iv) In the light of Section 145 of N.I. Act 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. Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act, v) The functions under the general Power of Attorney cannot be delegated to another persons without specific clause permitting the same in the Power of Attorney. Nevertheless, the general Power of Attorney itself can be cancelled and be given to another persons. 12. The Power of Attorney Holder who presented the complaint in his sworn statement did not utter anything as to how he acquired the knowledge about the transaction. Verifying the complainant and swearing to an affidavit in the capacity of legal consultant and Power of At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount extract pertaining to the husband of the accused. PW-1, in his evidence did not disclose anything about the present status of the vehicle. There is no evidence from his side about the actual amount due after the vehicle in question was seized. Basic requirement of offence under Section 138 of the N.I. Act, is, the Cheque ought to have been issued for discharge in whole or in part of any debt or other liability, but that is not established by the complainant. 15. In similar circumstances, the High Court of Kerala in the case of Sudha Beevi Vs. State of Kerala reported in (IV (2004) BC 71 : 2004 Crl.J. 3418) held that the hire-purchase agreement involved in the case between the financial institution and the hirer stood determined by the act of parties, the cheques which were accepted by the financial institution towards advance for repayment of the hire would become instruments without consideration and that they will be instruments for which consideration had failed and under the said circumstances the remedy available to the financial institution is only to realize the balance hire due by filing appropriate suit for damages on account of breach of terms of agreement. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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