TaxTMI 
TaxTMI 
2017 (4) TMI 672
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....al Court had proceeded to observe that within six months from the commencement of the Complainant's Firm, it had the capacity to lend a sum of Rs. 5,90,000/- for which no documents were filed on behalf of the Complainant and therefore, came to the conclusion that the Complainant's Firm had no capacity/wherewithal to lend a sum of Rs. 5,90,000/- and a finding was rendered to the effect that the case cheque amount was not a 'Legally Enforceable Debt'. 3.In short, the trial Court ultimately found that the Complainant/ Appellant's Firm had not established beyond reasonable doubt its case against the Respondent/Accused that he had committed an offence under Section 138 of the Negotiable Instruments Act and acquitted him under Section 255(1) Cr.P.C. 4.Questioning the correctness of the Judgment of Acquittal delivered by the trial Court in S.T.C.No.206 of 2015 dated 02.11.2015, the Appellant/Complainant has filed the instant Criminal Appeal before this Court by taking a plea that the Respondent/Accused had not denied the Execution of Cheque and therefore, the onus to rebut the presumption naturally arises under Section 118 and 139 of the Negotiable Instruments Ac....
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....lawfully charge a person viz., a money lender with the act of exorbitant interest when the money lender advanced the loan on the basis of a negotiable instrument exceeding Rs. 10,000/=." 11.The Learned Counsel for the Appellant relies on the decision J.D.Nichani and another V. State of Madras represented by its Secretary Department of Industries, Labour and Co-operation, AIR 1964 Madras 30, wherein, it is, among other things, held as follows: "Neither the Act nor any of its provisions can be said to be unreasonable restrictions upon the money lender or of the business of money lending." 12.The Learned Counsel for the Appellant seeks in aid of the decision A.Gunasekaran V. P.Velusamy, 2014(1) MWN(Cr.) DCC 49 (Mad.), at special page 50, whereby and whereunder, it is observed as under: "The combined reading of the Sections 2(6), 3, 4 and 12 would lead to an interpretation that the definition of 'loan' and 'money lender' as defined under the Money Lenders Act is also applicable to 'loan' and 'a person' as referred to under Section 3 of the Tamil Nadu Act 38/2003. Non-obstante Clause in Section 4 is applicable only to penalty and the penalty i....
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.... 'Legally Enforceable Debt' and finally, acquitted the Respondent/ Accused in respect of the offence under Section 138 of the Negotiable Instruments Act, which may not be interfered with by this Court sitting in Appeal. 16.The Learned Counsel for the Respondent cites the decision of the Hon'ble Supreme Court in A.C.Narayanan V. State of Maharashtra and another, AIR 2014 Supreme Court 630 (1), wherein it is observed as follows: "From a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to c....
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....ents, which are needed to establish the claim of the appellant." 18.It is to be relevantly pointed out by this Court that in the Complaint filed by the Appellant/Complainant in S.T.C.No.206 of 2015 on the file of the trial Court [through its Power Agent/Manager - P.Selvaraj], the Appellant/Complainant had averred that the Respondent/Accused had borrowed a sum of Rs. 5,90,000/- from it on 07.09.2013 for his urgent Business needs, on the same day, towards discharge of his liability, to repay the debt, he issued a Post dated Cheque for Rs. 5,90,000/- dated 07.10.2013 (Cheque was drawn on The South Indian Bank, Erode bearing No.117389 issued in favour of the Appellant/Complainant). 19.It comes to be known that the cheque was presented for collection on 07.10.2013 by the Appellant/Complainant at his Bankers Indian Overseas Bank, Thirunagar Colony Branch, but the same got returned with memo as 'Funds Insufficient' on 08.10.2013. 20.It transpires that Ex.P3 - Lawyer's Notice dated 01.11.2013 was issued by the Appellant/Complainant requiring the Respondent/ Accused to pay the due amount on the returned cheque amount within 15 days from the date of receipt of notice and....
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....itness in his individual capacity. However, because of the non examination of the Complainant under Section 200 Cr.P.C., the cognizance taken by a Judicial Magistrate on a certain complaint cannot, by no means, be termed as an illegal or without jurisdiction. 25.Indeed, if a 'Power of Attorney Holder' had appeared as a Witness, his evidence can be looked into for the purpose of registering the complaint in question/for issuance of process under Section 204 Cr.P.C. However, for further proceedings, a Complainant should be examined and in case of a Managing Partner or Working Partner of a Partnership Firm or if it is a Company or any other juristic individual, then, the said person authorised in this regard is quite competent to adduce evidence, as opined by this Court. No wonder, neither the Criminal Procedure Code nor the Negotiable Instruments Act, 1881 mentions that any one can depose for and on behalf of the Complainant. 26.It is to be pertinently pointed out that the ingredients of Section 190 Cr.P.C. clearly permits any person to approach the Learned Magistrate to prefer a complaint. No qualification is prescribed for an eligible person to file a complaint. Any o....
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....red along with the scheme of other provisions of the Act viz., Sections 59 and 69. 31.It cannot be gainsaid that 'an illegal Partnership can prosecute a person for theft of its property' as per decision R. V. Frankland, 1883 L & C 276. That apart, persons engaged in an illegal business whether Partners or not and whether incorporated or not are liable to suffer the sanction of Criminal Law. 32.Also that, in case of a Criminal Breach of Trust, Cheating, it was held that non registered firm had the right to criminal proceedings where an offence was completed, the prosecution proceedings could be initiated not for recovery of amount covered by the cheque but for bringing the offender to penal liability, as per decision Gurucharan Singh V. State of U.P. III 2002 B.C. 164 (All.). In fact, the bar created under Section 69(2) of the Indian Partnership Act, 1932 applies to 'Suit' only. It has no application for maintaining criminal proceedings under Section 138 of the Negotiable Instruments Act. 33.In fact, the filing of a Complaint in respect of an offence under Section 138 of the Negotiable Instruments Act is permissible through Holder of Power of Attorney, the C....
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....but by omitting to do something as well. Also, the burden is on the Complainant to establish that the cheque was signed by a Drawee in discharge of 'Legally Enforceable Debt'. In the absence of any cause of action, a person cannot launch a prosecution. In terms of the Negotiable Instruments Act, 1881, the arising of cause of action is not mere presentation of cheque nor mere dishonour of cheque alone, real cause of action is non payment of cheque amount or non compliance of demand through notice by the 'Drawer' within the statutory period. 38.In this connection, this Court aptly points out that as per Section 34 of the Indian Evidence Act, 1872 a 'Book of Account' must be a fool proof one. An entry in an Account Book regularly kept is of immense value only to establish that the entry was made at the time of the transaction. There is no particular form of Account Book is prescribed. But the said book must be of a regular and usual account book which explains itself and appears on its face, to create a liability in an account with the party against whom it is offered. Moreover, an individual making the entries should have personal knowledge of the facts sta....
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....mplaint on file in S.T.C.No.206 of 2015 and directed the issuance of summons to the Accused on payment of process fee and directed the matter to be called on 06.05.2015. Although the Complainant was not examined under Section 200 Cr.P.C., yet, the cognizance taken by the trial Court on the Complaint is perfectly maintainable in Law, in the considered opinion of this Court. Before the trial Court, P.W.1 in his cross examination, had stated that he had not produced any document to show that he continues to be the Manager of the Appellant/ Complainant Firm. In fact, in his evidence, he had admitted that he had not filed any license for the Appellant's Finance Firm to run the Finance Business. Even in the notice, complaint and in his chief examination and in Power Deed, P.W.1 had not stated that he knows about the money financial dealing details in a complete fashion. At best, atleast on behalf of the Appellant/Complainant, one of the Partners might have been examined before the trial Court in the main case. But that is not the position in the present case. The Account Book, separate Register, registered pertaining to the Appellant/ Complainant's Finance Company was not produce....