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2014 DIGILAW 4170 (MAD)

D. Kathiravan v. R. Vanmathi

2014-11-07

R.S.RAMANATHAN

body2014
Judgment : 1. The petitioner is the complainant in STC No.1317 of 2010 on the file of the Judicial Magistrate No.IV, Salem. The petitioner filed the complaint in STC No.1317 of 2010 against the respondent under Section 138 and 142 of the Negotiable Instruments Act and the complaint was dismissed and the respondent was acquitted of the charge by judgment of the learned Judicial Magistrate No.IV, Salem, dated 3.4.2014. Aggrieved over the same, the petitioner filed this petition seeking to grant leave of this Court to file Appeal against the said judgment. 2. It is submitted by the learned counsel for the petitioner that the respondent/accused issued a cheque for a sum of Rs.5,00,000/- in favour of the petitioner and thereafter, did not pay the amount and when the cheque was presented, the same was returned with an endorsement "funds insufficient". Therefore, after issuing statutory notice, the complaint was filed and the complainant examined PW.1, his power agent, to prove the entire transaction and no material evidence was collected from the evidence of PW.1 in favour of the respondent and the respondent has admitted the issuance of cheque and he came forward with a different story but failed to prove the same. Therefore, having regard to the admission of the respondent that the cheque was issued by him and failed to prove the circumstances under which the cheque was issued, the Court ought to have drawn adverse inference against the respondent and ought to have convicted the respondent under Section 138 of the Negotiable Instruments Act and the trial Court erred in taking into consideration the extraneous circumstances and acquitting the respondent. He also submitted that though the petitioner examined his power agent as PW.1, PW.1 is none other than the son of the petitioner and according to the petitioner, he was present during the transaction and therefore, his evidence should not have been rejected on the ground that he was only a power agent and the trial Court committed a serious error in rejecting the evidence of PW.1 on the ground that he was only a power agent and he was not aware of the transaction and also relied upon the judgment of the Hon'ble Supreme Court reported in (2010) 10 SCC 512 in the matter of Man Kaur (dead) by his LRs Versus Hartar Singh Sangha, in support of his contention. 3. 3. In this petition, we will have to see whether the leave sought for by the petitioner is to be granted? 4. The trial Court disbelieved the evidence of PW.1 stating that he was not aware of the transaction between the complainant and the accused and the transaction was known only to the complainant and the complainant also filed O.S.No.51/2011 on the file of the District Court, Vellore, against the accused for a sum of Rs.10,00,000/- in respect of an agreement of sale dated 6.10.2010 and the suit was filed in his personal capacity and no power agent was appointed therein and therefore, the contention of the learned counsel for the petitioner that the complainant was not well and therefore, he presented the complaint through power agent cannot be accepted and the complainant did not appear before the police and gave statement against the accused. In the absence of any evidence of the complainant, the statement of power agent cannot be taken into consideration and the prosecution also has not proved the case beyond reasonable doubt having regard to Ex.D.3, Ex.P.1 and D.2.,. 5. Therefore, we will have to see whether the trial Court has properly appreciated the evidence to come to the conclusion that the complainant has not proved his case. 6. Admittedly, the complaint was filed through power agent, and in the complaint, it has not been stated that the power agent was aware of the transaction between the complainant and the accused. In the statutory notice also, there was no mention that the power agent was aware of the transaction nor the power agent was present during the transaction. The statutory notice was given by the complainant himself and not by the power agent. In these circumstance, we will have to see what importance can be given to the evidence of the power agent. 7. In the judgment reported in (2010) 10 SCC 512 supra, at Paragraph No.18, the Supreme Court summarised the law regarding the evidence of power of attorney holder as follows:- “(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power agent and the filing of the suit. (b) If the attorney holder has done any act or handled any transactions, in pursuance of the power agent granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved. (c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders. (e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder. (f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.” In the above said judgment, the Hon'ble Supreme Court relied upon Paragraph 17 of the judgment reported in (1999) 3 SCC 573 in the matter of Vidhyadhar v. Manikrao, which is as follows:- “17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct...” 8. On the above principles, we will have to see the evidence of PW.1. PW.1, in his examination, has stated that on behalf of Kathiravan, namely, the complainant, he is giving evidence and deposed that the respondent received Rs.5,00,000/- for his business needs on 5.10.2010 and issued a cheque dated 11.10.2010 Cheque No.901727 drawn on Syndicate Bank, Ambur Branch and also executed a consent letter in favour of the complainant. The cheque was sent for collection and was returned and therefore, the statutory notice was issued. In cross examination, he admitted that he knew the accused and he did not state that he was present when the accused received Rs.5,00,000/- from his father on 5.10.2010. He only stated that he knew that the accused received Rs.5,00,000/- from his father on 5.10.2010 and he did not state that he was present at that time. He also admitted that he was aware of the civil case filed by his father against the accused and his father entered into an agreement of sale with the accused for purchase of a house property belonging to the accused for a consideration of Rs.43,00,000/- and paid an advance of Rs.10,00,000/- and his father has to pay balance Rs.33,00,000/- and an agreement was entered into in that respect on 6.10.2010 and on that date Rs.10,00,000/- was paid. The agreement of sale is marked as Ex.D.3 and the suit filed by the complainant against the accused for recovery of Rs.10,00,000/- alleged to have been paid as advance in respect of the said agreement of sale has been marked as Ex.D.4. 9. As per the judgment referred to above, if the power of attorney holder has personal knowledge of transaction and not the Principal, the power agent shall be examined and in other cases, the power agent cannot give evidence in the place of Principal for the act done by the Principal. Therefore, having regard to the judgment relied upon by the learned counsel for the petitioner, the power agent cannot give evidence on behalf of the Principal when he was not having exclusive knowledge and according to him, he only knew about the transaction and therefore, the Principal alone is entitled to give evidence. 10. Further, the case of the complainant cannot be accepted having regard to Ex.D.4 and D.3. According to the petitioner, the accused borrowed a sum of Rs.5,00,000/- on 5.10.2010 and did not repay the same. It is also admitted by the complainant that on 6.10.2010, the accused agreed to sell his property for a sum of Rs.43,00,000/- and received an advance of Rs.10,00,000/- and thereafter, did not execute the sale deed and therefore, the complainant filed O.S.No.51 of 2011 on the file of the District Court, Vellore, for recovery of Rs.10,00,000/-. Had the accused received Rs.5,00,000/- on 5.10.2010 and the complainant entered into the agreement of sale dated 6.10.2010 with the accused for purchase of the property belonging to the accused, certainly, he would have adjusted the sum of Rs.5,00,000/- paid on 5.10.2010 and he would have also mentioned about the same in the agreement of sale. Further, having filed the suit for recovery of Rs.10,00,000/- alleged to have been paid towards advance, in respect of the agreement of sale, there was no explanation on the part of the complainant for not mentioning the sum of Rs.5,00,000/- in the agreement of sale or not adjusting the amount of Rs.5,00,000/- when the agreement of sale was executed and these would probablise the case of the defence. Considering all these aspects, the trial Court rightly acquitted the respondent and dismissed the complaint. 11. Considering all these aspects, the trial Court rightly acquitted the respondent and dismissed the complaint. 11. Therefore, I do not find any infirmity in the judgment of the trial Court and no case has been made out by the petitioner to grant leave as sought for. Hence, this petition is dismissed. Consequently, Criminal Appeal in SR stage is also dismissed.