AJITH S.LULLA Vs. FRANCIS XAVIER SINGHRAJ

JUDGEMENT

(1.) The petitioner as a complainant filed private complaints for offence under Sec. 138 of the Negotiable Instruments Act, 1881 against the respondent in S.T.C.Nos.47/2021, 17/2021, 50/2021, 769/2021, 49/2021, 48/2021, 16/2021 and 42/2020 on the file of the learned Judicial Magistrate, Thiruvottiyur. The Trial Court by impugned order dtd. 26/5/2023 dismissed the complaint. Aggrieved over the same, the present leave petition and appeal filed.

(2.) The contention of the petitioner is that the petitioner/complainant who is doing money lending business had good terms with the respondent, who used to regularly borrow money from the petitioner for several years. M/s.Francis Kanoi Marketing Planning Services (Pvt.) Ltd., is a family Company managed and run by the respondent, his wife along with other Directors. The petitioner and the respondent had a running account and there were lending and repayment on a regular basis. After 2014-2015, the respondent failed to make timely repayments and the respondent was in the habit of postponing the payment. During the year 2019-2020, several letters exchanged between the petitioner and the respondent in his personal capacity as well as in the name of his Company and family members, but it was the respondent who was primarily communicating on behalf of others. Despite repeated requests, the respondent had not come forward to discharge the liability and hence, the postdated cheques issued by the respondent to recover the debt due were presented for encashment and the cheques were dishonoured. Hence, the petitioner filed complaints in S.T.C.Nos.47/2021, 17/2021, 50/2021, 49/2021, 48/2021, 16/2021 and 42/2020 against the respondent and in S.T.C.No.769 of 2021, the Company was also arrayed as accused along with the respondent. All the complaints were tried by the learned Judicial Magistrate, Thiruvottiyur and the same were dismissed. He would submit that the Trial Court failed to appreciate the issuance of cheques and signature in the cheques admitted by the respondent and hence, presumption under Ss. 118 and 139 of Negotiable Instruments Act comes into play. The respondent failed to lead any evidence or enter the witness box to dislodge the statutory presumption, against him and probabilize his defence. No document was produced by the respondent in his defence to show that the liability envisaged in the cheque was discharged by him at any point of time.

(3.) The learned counsel further submitted that in this case, the Trial Court though recorded that power of attorney holder was earlier employed with the respondent but cross examination was with regard to his previous employment and no question whatsoever posted to the Power Agent about the transaction details, while he was employed with the respondent. Further, the decision referred by the learned Magistrate in the case of A.C.Narayanan vs. State of Maharashtra reported in (2014) 11 SCC 790, wherein it is held that the power agent file a complaint and on behalf of the complainant if he had witnessed the transaction as agent of the payee/holder in due course or possess due knowledge regarding the said transaction will qualify him as witness. Further, in this case joint trial of eight separate complaints conducted, it is settled position that when separate cognizance taken on eight cases, the learned Magistrate ought to have conducted separate trials and passing of judgment in all cases taking common evidence, vitiates the entire trial. The learned Magistrate erroneously conducted a joint trial on eight cases before him and failed to appreciate the cross examination of power agent in the light of the evidence adduced in all eight cases. P.W.1/power agent deposed only on 6/10/2022 in all eight cases and common order was passed in all eight cases on 26/5/2023. Except for change in details of cheque, date, etc., the respondent had not questioned the letters which have been marked as exhibits wherein the respondent admitted his liability and issuance of cheques. The respondent on behalf of his wife and Company viz., M/s.Francis Kanoi Marketing Planning Service (Pvt) Ltd. was the person interacting with the petitioner/complainant, hence the Trial Court ought to have seen that not making the Company as party is not fatal to the case of the complainant.