Judgment :- 1. Both the Criminal Revision Case as well as the Criminal Original Petition are posted under the caption 'Specially Ordered cases" pursuant to the order passed by the Honourable The Chief Justice. 2. The issue involved for adjudication in both the Criminal Revision Case as well as the Criminal Original Petition are inter-connected and identical and therefore, by consent of counsel for both sides, they are disposed of by this Common Order. 3. Criminal Revision Case is filed by the petitioners, who are arrayed as accused 1 and 2 in C.C. No. 4395 of 2002 on the file of the learned VIII Metropolitan Magistrate, George Town, Chennai. The above said C.C. No. 4395 of 2002 was filed by the respondent Nirmala Kumari under Section 138 of the Negotiable Instruments Act. Brief facts which led to the institution of C.C. No. 4395 of 2002 is stated hereunder:- 3.1. According to the respondent, she was running a financial firm and during the course of such business, the second petitioner herein has borrowed a sum of Rs.1,30,000/-on 09.08.1998 and another sum of Rs.1,50,000/-on 10.08.1998. In order to secure prompt repayment of the borrowed amount, the second petitioner also executed a promisory note, promising to repay the borrowed amount with 3% interest. Accordingly, to repay the borrowed amount, the second petitioner had issued a cheque dated 11.04.2001 for Rs.5,40,000/- representing the principal as well as interest. According to the respondent, she presented the cheque for collection on the same day namely 11.04.2001 but it was returned for the reason "refer drawer" and returned to the respondent on 12.04.2001. Therefore, the respondent issued a notice dated 02.05.2001 to the petitioners calling upon them to repay the cheque amount. Thereafter, she presented the complaint under Section 138 of the Negotiable Instruments Act before the learned VIII Metropolitan Magistrate, George Town, Chennai. On completion of trial, the petitioners were convicted for the offence under Section 138 of the Negotiable Instruments Act and the second petitioner for and on behalf of the first petitioner/firm, was sentenced to undergo simple imprisonment for a period of six months and also ordered to pay compensation of Rs.6,00,000/-within a period of one month. Aggrieved by the order of conviction, the petitioners have filed Crl.A. No. 206 of 2005 before the learned Additional District and Sessions Judge, Chennai and the same was also dismissed on 27.12.2005. Aggrieved by the order of conviction, the petitioners have filed Crl.A. No. 206 of 2005 before the learned Additional District and Sessions Judge, Chennai and the same was also dismissed on 27.12.2005. Aggrieved by the same, the present Criminal Revision Case is filed. 4. As far as the Criminal Original Petition is concerned, it was filed for quashing the proceedings in C.C. No. 15119 of 2006 pending on the file of the learned III Metropolitan Magistrate, George Town, Chennai. The said C.C. No. 15119 of 2005 was filed by the defacto complainant Palanisamy, second respondent in Crl.OP No. 12255 of 2007. The facts relating to the filing of the C.C. No. 15119 of 2005 is as follows:- 4.1. The defacto complainant namely Palanisamy filed a complaint in M.P. No. 946 of 2004 on 20.05.2004 before the learned III Metropolitan Magistrate, George Town, Chennai and the same was forwarded to the respondent/police. Based on the said reference, the case in Crime No. 490 of 2004 came to be registered against the petitioners for the offence punishable under Sections 406, 420 and 506 (ii) IPC on 13.09.2004. According to the defacto complainant, he was running the construction firm in the name and style of A.P. Constructions in which the first accused Pannalal Kothari was inducted as partner. During the course of such business, the first accused made the defacto complainant to execute blank cheques and obtained his signature in the year 1996 itself. The first accused also induced the defacto complainant to execute the property of his wife as security, which he did. Thereafter, the second and third accused were introduced and inducted as partners in the company run by the defacto complainant. All the accused have colluded together and presented the blank cheques by filling fictitious sum to gain unlawfully. Therefore, on 09.03.2004, the defacto complainant sent a legal notice calling upon them not to misuse the cheques or other instruments in their possession. Thereafter, the defacto complainant has given a complaint before the Inspector of Police, Team X, Central Crime Branch, Egmore, Chennai. Therefore, on 09.03.2004, the defacto complainant sent a legal notice calling upon them not to misuse the cheques or other instruments in their possession. Thereafter, the defacto complainant has given a complaint before the Inspector of Police, Team X, Central Crime Branch, Egmore, Chennai. The Inspector of Police, after investigation, concluded that the dispute is purely a civil dispute inasmuch as there are civil suits pending in O.S. No. 4686 and 4687 of 2010 on the file of the II Assistant City Civil Court, Chennai besides that a complaint was filed by the third accused Nirmala Kumari under Section 138 of the Negotiable Instruments Act. Accordingly, the Inspector of Police filed his report on 30.11.2005 before the learned III Metropolitan Magistrate, George Town, Chennai. The defacto complainant has filed his protest petition and prayed to re-investigate the matter through some other independent agency. In the protest petition, the defacto complainant himself has admitted that the suit filed by the third accused Nirmala Kumari was decreed on 13.09.2002 with costs. According to the petitioners, based on such protest petition filed by the defacto complainant, the learned III Metropolitan Magistrate, George Town, Chennai, without giving notice to them has allowed the protest petition and ordered for re-investigation. According to the petitioners, the investigation so far done by the investigation officer was proper and there are no materials on record to proceed against the petitioners based on the complaint given by the defacto complainant. However, the III Metropolitan Magistrate framed the charges against the petitioners on 02.03.2006. Therefore, aggrieved by the order dated 02.03.2006 passed by the learned III Metropolitan Magistrate, George Town, Chennai, the Criminal Original Petition has been filed to quash the charges. 5. With this background, let me first examine the Criminal Revision Case filed by the petitioners. Crl. R.C. No. 142 of 2006:- 6. The learned Senior counsel for the petitioners would vehemently contend that the complaint, as filed by the complainant/respondent herein is not maintainable for the simple reason that the complaint was filed by Nirmala Kumari, Proprietix, M/s. Sanjay Finance, Sowcarpet, Chennai – 600 079, rep. by her Power of Attorney Holder Prakashchand Lalwani and the power of attorney relied on by the complainant/respondent herein is not valid in the eye of law. by her Power of Attorney Holder Prakashchand Lalwani and the power of attorney relied on by the complainant/respondent herein is not valid in the eye of law. According to the learned Senior counsel for the petitioner, the power of attorney was dated 11.04.2001, marked as Ex.P1, whereas, the endorsements in the stamp paper in which the power of attorney deed was prepared would indicate that it was purchased only on 11.05.2001 i.e., much after the execution of the power of attorney deed. Further, the power of attorney is not a registered power of attorney. Even the power of attorney was not executed before a competent Notary Public and it is not in accordance with Law. The complainant/respondent has also not filed any petition seeking permission to the power of attorney agent to prosecute the complaint on her behalf. Therefore, according to the learned senior counsel for the petitioners, when the complaint itself was not properly filed, the courts below ought not to have entertained the same. 7. The learned Senior counsel for the petitioners further contend that the cheque itself was not issued for any legally enforceable debt. According to the learned Senior counsel for the petitioners, the second petitioner A. Palanisamy has given a complaint to the Inspector of Police, Team X, Central Crime Branch, Egmore, Chennai stating that the complainant/respondent and others have forcibly taken the signed cheques from his possession besides taking the documents relating to the property standing in the name of the wife of the second petitioner herein and retained as security for the alleged debt payable by the second petitioner. Further, the complainant/respondent has already filed a civil suit in O.S. No. 4686 of 2001 against the second petitioner and his wife alleging that they have borrowed money from her, executed a promisory but failed to return the borrowed amount. The said suit was also subsequently decreed in favour of the complainant/respondent on 13.09.2002. Therefore, when once the complainant/ respondent obtained a decree from a civil suit based on the same set of transaction, the complaint filed under Section 138 of the Negotaible Instruments Act against the petitioners is not maintainable or sustainable. Therefore, the courts below ought to have held that by virtue of the decree passed in the civil suit, the complaint filed by the complainant/respondent is not maintainable and consequently it ought to have dismissed the complaint. 8. Therefore, the courts below ought to have held that by virtue of the decree passed in the civil suit, the complaint filed by the complainant/respondent is not maintainable and consequently it ought to have dismissed the complaint. 8. The learned senior counsel for the petitioners further submitted that the statutory notice dated 30.04.2001 issued by the complainant/respondent is defective inasmuch as the notice was addressed only to Mr. A. Palanisamy, Managing Partner of A.P. Constructions and not to the firm namely A.P. Construction however, in the complaint, the firm was arrayed as the first accused. When the statutory notice was not addressed to the firm, the complaint, as filed by the complainant, is legally not sustainable. 9. On the contrary, the learned counsel for the complainant/ respondent would contend that the complaint was filed by the complainant/ respondent in her capacity as Proprietrix of the firm through an authorised power of attorney agent. The power of attorney has been duly executed before a competent Notary Public and it is in accordance with law. The accused/ petitioners, after receipt of summons in the complaint, have given a counter-complaint before the Inspector of Police, Central Crime Branch, Egmore, Chennai stating that the complainant/respondent herein, along with others, have forcibly taken the cheques and other documents from the possession of the second petitioner, which is nothing but false and frivolous. The said complaint was referred as mistake of fact and a report was filed to that effect by the Inspector of Police on 30.11.2005 before the learned III Metropolitan Magistrate, George Town, Chennai. The defacto complainant has also filed his protest petition and prayed to re-investigate the matter through some other independent agency as contemplated under Section 173 (8) of Cr.P.C. The learned Magistrate in fact transferred the investigation into the complaint from Inspector of Police, Team 'A' to the Inspector of Police, Team 'C'. The investigation officer, without taking note of the fact that a decree was obtained by the complainant/ respondent in O.S. No. 4686 of 2001 as early as on 13.09.2002 proceeded to investigate the case and therefore the complainant/ respondent along with others have filed the present Crl.OP No. 12255 of 2007 before this Court. 10. The investigation officer, without taking note of the fact that a decree was obtained by the complainant/ respondent in O.S. No. 4686 of 2001 as early as on 13.09.2002 proceeded to investigate the case and therefore the complainant/ respondent along with others have filed the present Crl.OP No. 12255 of 2007 before this Court. 10. The learned counsel for the complainant/respondent further submits that second petitioner has given the complaint before the Central Crime Branch against the complainant/respondent and others only to harass them and to thwart the criminal proceedings initiated against him under Section 138 of the Negotiable Instruments Act. Both the Courts below have therefore ignored the criminal complaint given by the second petitioner and held that the cheque was issued for a legally enforceable debt based on the oral and documentary evidence. Merely because there was a civil suit filed and decree was obtained, it will not disentitle the complainant/respondent herein to file the complaint under Section 138 of the Negotiable Instruments Act, which was based on the dishonour of the cheque issued by the second petitioner herein. 11. I heard the counsel for both sides. The short point involved in the Criminal Revision Case is whether the courts below are right in imposing the conviction and sentence against the petitioners in the proceedings initiated by the complainant/respondent herein under Section 138 of the Negotiable Instruments Act. 12. A perusal of the records would indicate that the complaint under Section 138 of the Negotiable Instruments Act was filed by the complainant in her capacity as Proprietrix of Sanjay Finance through her power of attorney agent Mr. Prakashchand Lalwani. In order to authorise the power agent, the complainant/respondent has executed a power of attorney deed dated 11.04.2001 to enable him to prosecute the complaint on her behalf. As rightly pointed out by the learned senior counsel for the petitioners/accused, the power of attorney deed was executed on 11.04.2001, but the stamp papers for preparing the power of attorney deed was purchased on 11.05.2001 i.e., much after the execution of the power of attorney deed. Further, the power of attorney deed was not a registered one. The attestation obtained from the Notary Public would indicate that there was no date mentioned by the Notary Public. The Notary Public has only affixed his sign and seal in the power of attorney deed. Further, the power of attorney deed was not a registered one. The attestation obtained from the Notary Public would indicate that there was no date mentioned by the Notary Public. The Notary Public has only affixed his sign and seal in the power of attorney deed. In both the first and second page of the power of attorney deed, marked as Ex.P1 in C.C. No. 4935 of 2002 on the file of the VIII Metropolitan Magistrate, George Town, Chennai, the date is not mentioned by the Notary Public and only he merely affixed his seal and signed the power of attorney deed. Even above the words "executed before me" the notary public has not mentioned the date on which it was executed. The date on which the stamp paper was purchased was clearly mentioned as 11.05.2001 beneath the serial No. 5907. Therefore, based on this power of attorney deed, the Court below ought not to have permitted the power of attorney agent to prosecute the complaint besides that the complaint itself is not maintainable. Further, as per the document itself, the power of attorney produced by the complainant/respondent is not proper as it was not properly notorised by the Notary Public. 13. Yet another discrepancy to be noted is that the complaint was filed by Nirmala Kumari in her capacity as Proprietor of M/s. Sanjay Finance. The complainant alleges that the cheque issued by the second petitioner was dishonoured and therefore, she had sent the statutory notice on 30.04.2001 to the second petitioner/second accused. In other words, the notice was addressed only to Mr. A. Palanisamy, Managing Partner of A.P. Constructions and not to the first accused/firm namely "A.P. Constructions". In the notice which was addressed to Mr. Palanisamy, it is clearly mentioned that "That you have borrowed a sum of Rs.1,30,000/-(Rupees One Lakh Thirty Thousand Only)...." and it was not mentioned that the amount was borrowed on behalf of the firm by the second petitioner. In the reply notice dated 23.05.2001, the second petitioner admits only the loan transaction and denied the execution of cheque. Even the cause title in the complaint would indicate that the accused is "A. Palanisamy, Managing Partner of A.P. Constructions" and not "A.P. Construction represented by its Managing Partner". In the reply notice dated 23.05.2001, the second petitioner admits only the loan transaction and denied the execution of cheque. Even the cause title in the complaint would indicate that the accused is "A. Palanisamy, Managing Partner of A.P. Constructions" and not "A.P. Construction represented by its Managing Partner". Therefore, when once the notice was issued without mentioning the name of the firm and impleading the firm in the complaint filed under Section 138 of the Negotiable Instruments Act, the complaint is not maintainable as against the first accused company in view of the defect in the statutory notice issued by the complainant/ respondent herein. In fact, originally when the complaint was presented before the Court below, the complaint was filed only as against Palanisamy, Managing Partner of A.P. Constructions and therefore the complaint was returned. Thereafter, it was re-presented by impleading the firm also as an accused. In any event, without issuing the statutory notice, the complainant ought not to have filed the complaint impleading the firm and therefore also the complaint, as filed, is not maintainable. These are legal and vital points raised by the petitioners/ accused before the courts below, but the same were not considered and simply brushed aside by the courts below. 14. In the present case, the complainant/respondent has already filed O.S. No. 4686 of 2001 as against the second petitioner Palanisamy and his wife Sampoornam alleging that they have failed to return the borrowed amount, which was secured by means of a promisory note. It is also stated that a portion of the borrowed amount was already paid through the Court after decree. In any event, the contention of the learned senior counsel for the petitioners/accused that the suit transaction and the transaction based on which the complaint under Section 138 of the Negotiable Instruments Act are one and the same and therefore the complaint is not maintainable cannot be accepted. The filing of the Civil suit by the complainant/respondent is not a bar for her to institute the complaint under Section 138 of the Negotiable Instruments Act, which is based on the dishonour of the cheque, being a negotiable instrument. Therefore, I am of the view that on this ground, the complaint under Section 138 of the Negotiable Instruments Act, cannot be said to be unsustainable. Therefore, I am of the view that on this ground, the complaint under Section 138 of the Negotiable Instruments Act, cannot be said to be unsustainable. However, as mentioned above, the power of attorney executed by the complainant/respondent is not admissible in evidence and the statutory notice was defective and therefore, on these two grounds, I hold that the complaint filed by the complainant/respondent is not maintainable and consequently, the imposition of conviction and sentence by the Courts below are not sustainable. Crl. OP No. 12255 of 2007 15. As far as the complaint given by the defacto complainant Palanisamy is concerned, it is seen that the said complaint was given after receipt of a notice in the complaint filed under Section 138 of the Negotiable Instruments Act by Nirmala Kumar in C.C. No. 4935 of 2002 on the file of the VIII Metropolitan Magistrate, George Town, Chennai. The allegations in this complaint is that the accused have made calculated attempts to deceive the defacto complainant by obtaining his signature in blank cheques, besides securing the documents relating to the properties stood in the name of his wife Sampoornam. Originally, the investigation officer conducted investigation and came to a conclusion that the complaint is false and referred it as a mistake of fact. As against the same, the defacto complainant has filed his protest petition stating that the investigation was not conducted properly. Accepting the protest petition, the investigation was transferred from the Inspector of Police, Team 'A' of the Central Crime Branch and it was entrusted to the Inspector of Police, Team 'C' of the Central Crime Branch. Thereafter, the learned VIII Metropolitan Magistrate, George Town, Chennai framed charges against the petitioners for the offences under Section 406 and 420 of IPC. 16. A notice dated 03.08.2001 was issued by Nirmala Kumari to the defacto complainant and his wife Sampoornam calling upon them to repay the amount covered in the promissory note for which no reply was sent. Whereupon, even on 09.03.2001, the defacto complainant has sent a notice in which he alleged that the cheques and other instruments were obtained from him forcefully. The said Nirmala Kumari filed the suit in O.S. No. 4686 of 2001 and the same was also decreed on 13.08.2002. Whereupon, even on 09.03.2001, the defacto complainant has sent a notice in which he alleged that the cheques and other instruments were obtained from him forcefully. The said Nirmala Kumari filed the suit in O.S. No. 4686 of 2001 and the same was also decreed on 13.08.2002. It is pertinent to mention that the defacto complainant did not contend about the suit filed by Nirmala Kumari nor has he preferred an appeal. Further, it is admitted that he paid a portion of the amount as per the decree in Execution Proceedings. 17. A perusal of the complaint given by the defacto complainant would indicate that the complaint is very vague. It was alleged that the petitioners were inducted as partners earlier and they have forcibly taken the cheques signed by him. The investigation officer originally closed the complaint as a mistake of fact. However, on the basis of protest petition filed by the defacto complainant, the learned III Metropolitan Magistrate, George Town transferred the investigation into the complaint to another team, without giving any opportunity to the petitioners, who are arrayed as accused in the complaint. Further, the conduct of the defacto complainant has to be looked into. The defacto complainant, only to thwart the proceedings initiated against him under Section 138 of the Negotiable Instruments Act, has given the complaint against the petitioners without any basis. In fact, the allegations raised in the complaint given by the defacto complainant was also raised as a defence in the proceedings initiated against him under Section 138 of the Negotiable Instruments Act, but that has been negatived by the Court. In the Civil Suit filed by Nirmala Kumari, the defacto complainant did not raise any defence, but allowed it to become final and also paid the money. Therefore, from the allegations made in the complaint and on consideration of the subsequent events, it is clear that the allegations raised in the complaint are purely civil in nature and therefore, the investigation officer is right in closing the complaint as mistake of fact. Therefore, the question now is whether the petitioners could be still charged for an offence alleged to have committed by them without any materials on record. Therefore, the question now is whether the petitioners could be still charged for an offence alleged to have committed by them without any materials on record. It is needless to mention that if the criminal proceedings at the instance of the defacto complainant against the petitioners are allowed to be continued, then, in every complaint filed under Section 138 Negotiable Instruments Act, the accused would prefer a counter complaint by alleging that the cheque was forcibly obtained from his or her possession and there was no legally enforceable debt on his or her part. Under those circumstances, the plea of the petitioners has to be accepted and the final report filed by the investigation officer ought to have been accepted by the learned III Metropolitan Magistrate, George Town, Chennai. Thus, this is the fittest case where the Criminal Original Petition has to be allowed by quashing the proceedings in C.C.No.15119 of 2006 against the petitioners. 18. As per the decision of the Honourable Supreme Court reported in (AmitKapoor vs. Ramesh Chander and another) 2012 (9) SCC 160, the Honourable Supreme Court has laid down guidelines to be followed in entertaining petitions under Section 482 of CrP.C. in which it was held that if the Courts find the dispute is purely a civil dispute, it can quash the criminal proceedings to meet the ends of justice. 19. In the above factual backdrop, applying the aforesaid decision of the Honourable Supreme Court to the facts of the present case, it has to be held that the learned III Metropolitan Magistrate, George Town, Chennai is not justified in proceeding further with the complaint given by the defacto complainant as against the petitioners. Such a complaint can only be construed as an after-thought to thwart the legal proceedings initiated against the defacto complainant Palanisamy under Section 138 of the Negotiable Instruments Act by the petitioners. Even the defacto complainant has raised the plea in the proceedings initiated against him under Section 138 of the Negotiable Instruments Act by Nirmala Kumari that the cheques were obtained from him forcefully, of course, unsuccessfully as it was found that the defacto complainant, who is the accused in the complaint under Section 138 of the Negotiable Instruments Act, had admitted the execution of the cheque and resultantly he was convicted. Therefore, the theory now put forward by the defacto complainant that the cheques and promissory notes have been obtained forcefully cannot be accepted. Under those circumstances, the plea raised by the petitioners in the Criminal Original Petition for quashing the charges framed against them is legally sustainable and therefore, the charges framed against them are to be quashed. 20. In the result, the Judgment dated 27.12.2005 made in Crl. A. No. 206 of 2005 on the file of II Fast Track Court/Additional District and Sessions Judge, Chennai confirming the Order dated 27.04.2005 made in C.C. No. 4935 of 2002 on the file of the VIII Metropolitan Magistrate, George Town, Chennai, are set aside and the Criminal Revision Case is allowed. Consequently, the Criminal Original Petition filed by the petitioners is allowed and the proceedings in C.C. No. 15119 of 2006 on the file of the learned III Metropolitan Magistrate, George Town, Chennai is quashed.