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2003 DIGILAW 1266 (MAD)

Neptune Inflatables Ltd. v. Hydra

2003-08-08

M.CHOCKALINGAM

body2003
Judgment :- This is an appeal brought forth by the complainant challenging a judgment of acquittal rendered by the learned XVIII Metropolitan Magistrate, Saidapet, Madras in a private complaint filed by the appellant Neptune Inflatables Ltd., under Sec.138 read with 141 of The Negotiable Instruments Act. 2. The appellant/complainant made the following averments in the complaint: The complainant company entered into business transaction with the accused company. The parties entered into a High Seas Sales Agreement on 6.10.1989 by which the accused agreed to reimburse the amount for the import of 40 Nos. of H.P. engine of Suzuki origin. Out of the same, a sum of Rs.3,82,000/- was due from the accused to the complainant. The accused issued a cheque bearing No.706362 dated 15.1.90 for Rs.3,82,000/- drawn on Indian Bank, Royapettah, Madras, which was marked as Ex.P2. The complainant did not present the cheque till the end of May 1990, as the accused requested not to present the same for some time. Thereafter, the complainant presented the cheque on 28.5.90 before their Bank, and the same was returned with the remark "refer to drawer". On instructions from the accused, the cheque was again presented by the complainant on 2.6.90, and the same was returned with the endorsement "payment stopped by the drawer". Once again the cheque was presented on 2.7.90 as per the instructions of the accused, but it was returned as "refer to drawer". Before the cheque was presented, the complainant wrote a letter to the accused on 30.6.90 informing that they were presenting the cheque on 2.7.90. The complainant received a letter from the Indian Bank, Royapettah, Madras stating that whenever the said cheque was presented and re-presented, the same was returned with the endorsement "refer to drawer" because of insufficient funds. In such circumstances, the complainant issued a notice on 10.7.90. The accused having acknowledged the notice, replied on 24.7.90 giving evasive answer. 3. The learned Metropolitan Magistrate who took the cognizance of the complaint, conducted enquiry. In order to prove the case, the complainant examined two witnesses as P.Ws.1 and 2 and relied on 10 documents. On completion of the evidence, the accused was questioned under Sec.313 of Cr.P.C. No defence witness was examined, but 12 documents were marked on the side of the defence. In order to prove the case, the complainant examined two witnesses as P.Ws.1 and 2 and relied on 10 documents. On completion of the evidence, the accused was questioned under Sec.313 of Cr.P.C. No defence witness was examined, but 12 documents were marked on the side of the defence. After consideration of the rival submissions and scrutiny of the materials, the learned Metropolitan Magistrate dismissed the complaint and acquitted the accused stating that the complainant has not proved the case beyond reasonable doubt. Hence, this appeal. 4. Heard the learned Counsel for both sides. The materials available are carefully scrutinised. The Court is unable to notice any substance in this appeal. 5. As could be seen from the available materials, the appellant/complainant put forth a specific case that the respondent/accused company was liable to pay Rs.3,82,000/- being the remainder after payment of Rs.4,00,000/- in the business transaction over the supply of goods amounting to Rs.7,82,000/-; that Ex.P2 cheque was issued on 15.1.1990 drawn on Indian Bank, Royapettah Branch, Madras; that the same was presented on 28.5.1990; that it was returned with the remark "refer to drawer"; that once again on the instructions of the accused, the same cheque was again presented on 2.6.1990 and was returned with the endorsement "payment stopped by the drawer"; and that subsequently on the instructions of the accused, it was presented before the Bank for the third time on 2.7.1990, and again it was returned as "refer to drawer". In order to prove all the above, the complainant has filed necessary documents. Finally a notice was issued on 10.7.1990. The accused acknowledging the same issued a reply on 24.7.1990. Since no payment was made towards Ex.P2 cheque, the complainant came forward with the said complaint. The Accountant of the complainant Company was examined as P.W.1. His authority to represent the complainant company was questioned on the side of the accused. It is pertinent to point out that it was P.W.1 who has signed the complaint representing the company. It remains to be stated that the seal of the company was not affixed to in the complaint. No materials were placed before the trial Court that he was authorised to represent the company and to give evidence. No resolution passed by the complainant company authorising him to file the complaint was filed before the lower Court. It remains to be stated that the seal of the company was not affixed to in the complaint. No materials were placed before the trial Court that he was authorised to represent the company and to give evidence. No resolution passed by the complainant company authorising him to file the complaint was filed before the lower Court. Under such circumstances, the lower Court was perfectly correct in finding that it cannot be stated that it was a complaint proper, as alleged by the complainant or it was properly represented before the Court. 6. The case of the appellant was also rejected by the lower Court on another ground. It is not in dispute that Ex.P2 cheque was issued by the accused company to the complainant company. But, a plea was taken by the accused before the lower Court that before presenting Ex.P2 cheque to the Bank for collection, the necessary permission from the accused should be obtained by the complainant company, without which the cheque in question should not be presented. This contention was substantiated by the respondent/accused pointing to Ex.D1 letter dated 29.3.1990 addressed to the accused company by the complainant company. Ex.D1 letter reads: "Therefore, you have issued another cheque bearing Sl.No.706362 dated 15/01/90 for Rs.3,82,000/- drawn on Indian Bank, Royapettah Branch. This cheque was given to us by you on our repeated insists and pressure for payment. You have taken a undertaking from our Managing Director stating in the undertaking, amongst other things that your cheque will not be presented for payment without prior permission from the drawer. This undertaking is not binding on our Company." From the very reading of the above, it would be clear that in respect of the cheque in question, an undertaking was given by the Managing Director of the complainant company to the accused company that the said cheque will not be presented for payment without prior permission from the drawer. There is no material placed before the trial Court that such a permission was ever obtained before placing the cheque in question for encashment. In the instant case, the cheque was presented thrice during the interval of six months. Subsequently, a notice was issued, but the same was replied by the accused categorically stating the reasons. There is no material placed before the trial Court that such a permission was ever obtained before placing the cheque in question for encashment. In the instant case, the cheque was presented thrice during the interval of six months. Subsequently, a notice was issued, but the same was replied by the accused categorically stating the reasons. In such circumstances, the complaint was filed by the Accountant of the complainant company, who had not shown to the lower Court that he was authorised to do so, and the cheque was placed before the Bank without the necessary permission as agreed upon between the parties. Hence, the lower Court was perfectly correct in rejecting the case of the complainant, since it was not proved as required under Sec.138 of The Negotiable Instruments Act. There is nothing to interfere in the judgment of the Court below. 7. In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the lower Court.