@JUDGMENTTAG-ORDER
K. Mohan Ram, J.@mdashThe respective respondents/complainants in Crl. OP. Nos. 27779, 27928 & 27947/2005 have filed the complaints against the respective petitioners/accused herein for the alleged offences u/s 138 r/w 142 of the Negotiable Instruments Act.
2. The brief facts which are necessary for the disposal of the above original petitions are set out below:
Crl. OP. No. 27779/2005:
The petitioner/accused herein borrowed a sum of Rs. 1,00,000/- [Rupees one lakh only] from the complainant in order to meet his financial need in the business on 28.08.2001 and the accused also paid the interest of Rs. 2,100/- on the same day. The petitioner promised to discharge the said liability in two instalments, i.e., Rs. 50,000/- on 28.09.2001 and Rs. 50,000/- on 01.10.2001 and issued two cheques in respect of the same bearing Nos. 876123 and 876124 dated 28.09.2001 and 01.10.2001 respectively. When the complainant presented the same before the Punjab National Bank on 18.12.2001, the said cheques were dishonoured and were returned with an endorsement "Funds Insufficient". The complainant also sent a lawyer''s notice dated 26.12.2001 to the accused to pay the amount within 15 days from the date of receipt of the lawyer''s notice, to which the accused issued a reply notice on 15.01.2002 containing false allegations. Hence, the accused/petitioner has committed an offence u/s 138 read with 142 of the Negotiable Instruments Act. Hence, aggrieved by that, the complainant has filed a complaint through his power agent and the same was taken on file by the learned Judicial Magistrate No. III, Erode in CC. No. 140/2002.
Crl. OP. NO. 27928/2005:
The accused owed a sum of Rs. 2,07,000/- to the complainant for the transaction that took place between 05.05.2001 to 16.07.2001 and the fifth accused issued two post-dated cheques drawn on Vysya Bank Ltd., Erode, the details of which are stated here under:
Sl.No. Date Cheque No. Bank Name Amount 1 21.07.2001 398088 The Vysya Bank Ltd., Erode Rs. 35,000/- 2 26.07.2001 398089 The Vysya Bank Ltd., Erode Rs. 35,000/-
The complainant presented the cheques for encashment through his bank, viz., Canara Bank, Erode Branch but the said two cheques were dishonored since the account was closed in the accused bank and the same was intimated to the complainant by a return memo dated 10.01.2002. The complainant also issued a Lawyer''s notice dated 18.01.2002 to the accused to pay the amount within 15 days from the date of receipt of the lawyer''s notice and except A-4 all the other accused received the notice and sent a reply with false allegations. Hence, aggrieved by that, the complainant has filed a complaint through his power agent and the same was taken on file by the learned Judicial Magistrate No. II, Erode in CC. No. 102/2002.
Crl. OP. No. 27947/2005:
The petitioner/accused herein borrowed a sum of Rs. 1,00,000/- [Rupees one lakh only] from the complainant in order to meet his financial need in the business on 06.09.2001 and the accused also paid one month interest of Rs. 2,000/- in advance on the same day. The petitioner promised to discharge the said liability of Rs. 1,00,000/- and issued cheque in respect of the same bearing No. 064219 dated 06.10.2001 drawn on Federal Bank Ltd., Erode Branch. When the complainant presented the same before the Punjab National Bank on 18.12.2001, the said cheques were dishonoured and were returned with an endorsement "Payment Stopped by the drawer". The complainant also sent a lawyer''s notice dated 27.12.2001 to the accused to pay the amount within 15 days from the date of receipt of the lawyer''s notice, to which the accused issued a reply notice on 05.01.2002 containing false allegations. Hence, the accused/petitioner has committed an offence u/s 138 read with 142 of the Negotiable Instruments Act. Hence, aggrieved by that, the complainant has filed a complaint through his power agent and the same was taken on file by the learned Judicial Magistrate No. III, Erode in CC. No. 5/2003.
3. Since common issue arises for consideration in all the above original petitions, the same are being disposed of by this common order.
4. Heard both sides.
5. Mr. V. Sairam, learned Counsel for the petitioners in the above original petitions submitted that since the respective complaints have been filed through the power agents of the respective complainants, the same is not maintainable. But, at the same breadth, the learned Counsel for the petitioners fairly submitted that the said contention was raised on the basis of the prevailing law as on the date of the filing of the above petitions. But, subsequently, a Division Bench of this Court in the decision reported in
6. Same submission is made by the learned Counsel for the respondents.
7. In the decision reported in
17. In view of the above discussion, we hold that,
[1] With regard to the first issue, the complaint even if not signed by the Power of Attorney on behalf of the complainant but signed in his own name, is maintainable and not bad in law because it is more procedural than substantive;
[2] Regarding the second issue, though the general Power of Attorney at initial stage fails to produce the deed Power of Attorney or the affidavit of the complainant in proof of execution of Power of Attorney, the same can be rectified by producing the same at the subsequent stage of the proceedings as and when the validity of the Power of Attorney is questioned by the accused and the court cannot then be called upon to decide the genuineness or the validity of the Power of Attorney; and
[c] In respect of the third issue, it is not required to record the sworn affidavit of the complainant also on a future date to enable the court to exercise its discretion.
If in the light of the aforesaid law laid down by the Division Bench of this Court, the contention of the petitioners is considered, the same cannot be countenanced. Except the aforesaid submission, no other submission has been made.
8. In view of the above, the above criminal original petitions are dismissed. Consequently, connected miscellaneous petitions are also dismissed.
9. Since CC. Nos. 140/2002, 102/2002 and 5/2003 are pending right from the year 2002 and 2003 on the file of the learned Judicial Magistrate, No. III, Erode and learned Judicial Magistrate No. II, Erode, the learned Magistrates are directed to dispose of CC. Nos. 140/2002, 102/2002 and 5/2003 within a period of five months from the date of receipt of a copy of this order.
