CRL Appeal - P.R. Creations (Crl.a.no of 2013) - 138 Nia

MEMORANDUM OF THE GROUNDS OF CRIMINAL APPEAL
(Under Section 374(2) of Criminal Procedure Code)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Crl.A. No: of 2013
M/s P.R. Creations,

Rep. by its Power of Attorney,
P. Sampath Kumar,
S/o Palanisamy,
No: 21/8A, Chellam Nagar 2nd Street,
Iduvampalayam Post,
Tiruppur – 641 687
… Appellant / Complainant
Vs
Sivasubramaniam,
Prop: M/s Sri Harini Apparels,
No: 11, Pethichettipuram,
… Respondent / Accused
MEMORANDUM OF THE GROUNDS OF CRIMINAL APPEAL
The Address for Service of all notices and processes on the Appellant
is that of his Counsels, M/s M. EASAN, INIYAA EASAN & S GANESH
BABU, 2nd Floor, Fathima Manzil, 150/309, Linghi Chetty Street, George
Town, Chennai – 600 001.
The Address for Service of all notices and processes on the

Respondents are the same as the above.
The Appellant above named begs to prefer this Memorandum of

Grounds of Criminal Appeal against the Judgment passed in S.T.C.No:
147 of 2012 on the file of the Judicial Magistrate, Fast Track Court,
Tiruppur dated 17-10-2012 for the following among other:-
Page No: 1
1. The Appellant submits that, the Appellant is a Partnership
concern named as “P.R. Creations” consisting Two Partners viz., Pushpa
and P.E. Velusamy and the said Partners have given a General Power of
Attorney in favour of P. Sampath Kumar to file and prosecute the Case
against the Accused. The said Partnership Deed and General Power of
Attorney are produced herewith.
2. The Appellant further submits that, the Complainant is

running a Manufacturing and Sale of Hosiery Garments under the Name
and Style of P.R. Creations. The Respondent/Accused is the Proprietor of
Sri Harini Apparels, dealing in Manufacturing of Baniyan Items.
3. The Appellant further submits that, the Respondent/Accused

have been given Purchase Order No: HA-01-2008 to the
Appellant/Complainant on 23-09-2008 for Manufacturing of Baniyan
Items on Job Work Basis. As per Books of Accounts maintained by the
Appellant/Complainant’s regular course of Business Transaction a Sum
of Rs. 3,42,006/- (Rupees Three Lakhs Forty Two Thousand and Six only)
is due and payable by the Respondent/Accused to the
Appellant/Complainant.
4. The Appellant further submits that, when the Appellant

asked for the Payment, the Respondent/Accused issued the following
Cheques to the Appellant to discharge Parts Satisfaction of Liability to the
Appellant:-
Sl. No Date Cheque No Drawn on Amount
1. 14-11-2008 000019 Kotak Mahindra Bank Ltd., Rs. 1,00,000/-

Park Avenue,
Avinashi Road,
Tiruppur

Park Avenue,
Avinashi Road,
Tiruppur
Total Rs. 3,30,000/-
Page No: 2
At the time of issuing the above Cheques, the Respondent/Accused
has assured the Appellant that he will honor the above mentioned
Cheques when it is presented for payment.
5. The Appellant further submits that, believing the assurance

given by the Respondent/Accused when the Complainant presented the
above mentioned Two Cheques through the Appellant’s Bank, Punjab &
Sind Bank, Tiruppur on 14-03-2009. But the above mentioned Cheques
have been dishonored due to FUNDS INSUFFICIENT in the
Respondent/Accused’s Account and returned to the Appellant on 14-03-
2009, with a Banker’s Memo stating “FUNDS INSUFFICIENT”. The Xerox
Copy of the Cheques and the Banker’s Memo are also produced herewith.
6. The Appellant further submits that, the Respondent/Accused

has knowingly issued the above Cheques without Sufficient Funds in the
Respondent/Accused’s Bank Account, only to Delay, Defraud and Cheat
the Appellant’s Legitimate Rights. Therefore the Respondent/Accused
committed an Offence under Section 138 of Negotiable Instruments Act.
7. The Appellant submits that, after the Dishonor of the

Cheques, the Appellant issued a Legal Notice to the Respondent/Accused
through his Counsel on 19-03-2008 asking the Respondent/Accused to
pay the Cheques’ Amount within Fifteen days. The Respondent/Accused
received the above said Legal Notice on 31-03-2009. The
Respondent/Accused has not paid the Cheques’ Amount and not issued
any Reply. The Office Copy of the said Legal Notice and served
Acknowledgement Card are also produced herewith.
8. The Appellant filed the Complaint in S.T.C. No: 2030 of 2008

before the Judicial Magistrate – I, Tiruppur. The Case was prosecuted in
the above said Court till 07-08-2012. On 07-08-2012, the Case was
transferred to the Fast Track Court, Tiruppur, the Court below herein,
and was re-numbered in S.T.C. No: 147 of 2012. This transfer was done
without any Information or Notice to the Appellant or to his Counsel.
Hence the Appellant is unaware of the Transfer to the Court below.
9. While facts remaining so, the Court below dismissed the Case
on 17-10-2012 under Section 256 Cr.P.C.
Page No: 3
GROUNDS
a) The Judgment of the Court below is against Law and all

probabilities of the Case.
b) The Court below ought to have seen that the Case originally
numbered as S.T.C. No: 2030 of 2009 before Judicial Magistrate – I,
Tiruppur. The Appellant / Complainant was attending the
Proceedings regularly and this Case was transferred and
renumbered as S.T.C. No: 147 before the Court below on 07-08-
2012. The Court have seen that No Court Notice was sent to the
Appellant / Complainant about the Transfer of the Case.
c) The Court below erred in dismissing the Case under Section 256
CrPC without giving Proper Opportunity to the Appellant /
Complainant to represent himself in the Case.
d) The Reasons given by the Court below for dismissing the Case is
not sustainable in Law and they are liable to be set aside by this
Honorable Court.
It is therefore prayed that this Honorable Court may be pleased to

set aside the decision made in S.T.C. No:147 of 2012 on the file of the
Judicial Magistrate, Fast Track Court, Tiruppur dated 17-10-2012 and
order the Court below to re-open the case and thus render justice.
Dated at Chennai on this the 30th day of January 2013
COUNSELS FOR APPELLANT
Page No: 4
TIRUPPUR : : DISTRICT
HIGH COURT : : MADRAS
Crl.A. No of 2013
GROUNDS OF APPEAL
M/s. M. EASAN
INIYAA EASAN
S GANESH BABU
COUNSELS FOR PETITIONER

N THE HIGH COURT OF JUDICATURE AT MADRAS
Crl.A. No: of 2013
M/s P.R. Creations,

P. Sampath Kumar,
Vs
Sivasubramaniam,
INDEX
Sl. No Date Description Page No
1 26-02-2008 Partnership Deed
2 30-04-2009 Power of Attorney
3 25-10-2008 Invoice Copy
4 -- Xerox of the Cheques
5 -- Banker’s Memo
6 19-03-2008 Legal Notice
7 31-03-2009 Acknowledgement Card
8 -- Complaint Copy
9 17-10-2012 Judgment in S.T.C. No: 147 of 2012
10 -- Grounds of Appeal
Dated at Chennai on this the 30th day of January 2013
COUNSELS FOR APPELLANT
Page No: 1
Crl.A. No of 2013
TYPED SET OF PAPERS
M/s. M. EASAN
INIYAA EASAN
S GANESH BABU

Crl.A. No of 2013
JUDGEMENT
In
S.T.C. No: 147 of 2012
M/s. M. EASAN
INIYAA EASAN
S GANESH BABU

MEMORANDUM OF CRIMINAL ORIGINAL PETITION
[Under Section 378 (4) of Criminal Procedure Code]
M.P.No: of 2013
IN
Crl.A.No: of 2013
M/s P.R. Creations,

P. Sampath Kumar,
S/o Palanisamy,
Iduvampalayam Post,
Vs
Sivasubramaniam,
PETITION FOR LEAVE TO FILE APPEAL
The Petitioner humbly submits as follows:-
1. The Petitioner submits that, the Petitioner is a Partnership

concern named as “P.R. Creations” consisting Two Partners viz., Pushpa
and P.E. Velusamy and the said Partners have given a General Power of
Attorney in favour of P. Sampath Kumar to file and prosecute the Case
against the Accused. The said Partnership Deed and General Power of
Attorney are produced herewith.
2. The Petitioner further submits that, the

Respondent/Accused have been given Purchase Order No: HA-01-2008
to the Appellant/Complainant on 23-09-2008 for Manufacturing of
Baniyan Items on Job Work Basis. As per Books of Accounts maintained
by the Appellant/Complainant’s regular course of Business Transaction
a Sum of Rs. 3,42,006/- (Rupees Three Lakhs Forty Two Thousand and
Six only) is due and payable by the Respondent/Accused to the
Petitioner/Complainant.
3. The Petitioner further submits that, the

Respondent/Accused has knowingly issued the above Cheques without
Sufficient Funds in the Respondent/Accused’s Bank Account, only to
Delay, Defraud and Cheat the Appellant’s Legitimate Rights. Therefore
the Respondent/Accused committed an Offence under Section 138 of
Negotiable Instruments Act.
4. The Petitioner filed the Complaint in S.T.C. No: 2030 of 2008

before the Judicial Magistrate – I, Tiruppur. The Case was prosecuted in
the above said Court till 07-08-2012. On 07-08-2012, the Case was
transferred to the Fast Track Court, Tiruppur, the Court below herein,
and was re-numbered in S.T.C. No: 147 of 2012. This transfer was done
without any Information or Notice to the Appellant or to his Counsel.
Hence the Appellant is unaware of the Transfer to the Court below.
5. The Petitioner submits that the grounds of appeal may be

treated as part and parcel of this petition. He is advised to submit that
he is having better changes of successes before this Honourable Court.
Hence unless this Honourable Court allows this petition, the Petitioner
will be put irreparable loss and hardship.
It is therefore prayed that this Honourable Court may be pleased to

grant leave to the Petitioner to file the above appeal against the order
passed in S.T.C.No: 147 of 2012 on the file of the Learned Fast Track
Judicial Magistrate Court, Tiruppur dated 17.10.2012 and thus render
justice.
Dated at Chennai on this the 04th day of February 2013
COUNSEL FOR PETITIONER

M.P.NO. Of 2013
In
Crl.A. No of 2013
PETITION FOR LEAVE TO FILE
M/s. M. EASAN
INIYAA EASAN
S GANESH BABU

M.P.No: of 2013
IN
Crl.A.SR.No: of 2013
M/s P.R. Creations,

P. Sampath Kumar,
S/o Palanisamy,
Iduvampalayam Post,
… Petitioner
Vs
Sivasubramaniam,
… Respondent
AFFIDAVIT OF P. SAMPATH KUMAR
P. SampathKumar, S/o. Late Palainsamy Gounder, Hindu,

aged about 42 years, residing at No. 28/8A, Chellam Nagar 2 nd street,
Iduvampalayam, Tiruppur, Tiruppur District, now temporarily came
down to Chennai, do hereby solemnly affirm and sincerely state as
follows:-
1. The I submits that, the I worked a Partnership concern named

as “P.R. Creations” consisting Two Partners viz., Puspa and P.E.
Velusamy and the said Partners have given a General Power of Attorney
in favour of me to file and prosecute the Case against the Accused. The
said Partnership Deed and General Power of Attorney are produced
herewith.
2. I further submits that, I running a Manufacturing and Sale of
Hosiery Garments under the Name and Style of P.R. Creations. The
Respondent is the Proprietor of Sri Harini Apparels, dealing in
Manufacturing of Baniyan Items.
3. I submits that, the Respondent have been given Purchase Order

No: HA-01-2008 to my company on 23-09-2008 for Manufacturing of
Baniyan Items on Job Work Basis. As per Books of Accounts maintained
by the company regular course of Business Transaction a Sum of Rs.
3,42,006/- (Rupees Three Lakhs Forty Two Thousand and Six only) is
due and payable by the Respondent to the company.
4. I further submits that, when I asked for the Payment, the

Respondent issued the following Cheques to me to discharge Parts
Satisfaction of Liability to the company:-
Sl. No Date Cheque No Drawn on Amount

Park Avenue,
Avinashi Road,
Tiruppur

Park Avenue,
Avinashi Road,
Tiruppur
Total Rs. 3,30,000/-
At the time of issuing the above Cheques, the Respondent has

assured to me that he will honor the above mentioned Cheques when it
is presented for payment.
5. I further submits that, believing the assurance given by the

Respondent when the Complainant presented the above mentioned Two
Cheques through the my Bank, Punjab & Sind Bank, Tiruppur on 14-03-
2009. But the above mentioned Cheques have been dishonored due to
FUNDS INSUFFICIENT in the Respondent Account and returned to the
company on 14-03-2009, with a Banker’s Memo stating “FUNDS
INSUFFICIENT”. The Xerox Copy of the Cheques and the Banker’s Memo
are also produced herewith.
6. I further submits that, the Respondent has knowingly issued the
above Cheques without Sufficient Funds in the Respondent’s Bank
Account, only to Delay, Defraud and Cheat the my Legitimate Rights.
Therefore the Responden committed an Offence under Section 138 of
7. I submits that, after the Dishonor of the Cheques, the I issued a

Legal Notice to the Respondent through my Counsel on 19-03-2008
asking the Respondent to pay the Cheques’ Amount within Fifteen days.
The Respondent received the above said Legal Notice on 31-03-2009. The
Respondent has not paid the Cheques’ Amount and not issued any
Reply. The Office Copy of the said Legal Notice and served
8. I filed the Complaint in S.T.C. No: 2030 of 2008 before the

Judicial Magistrate – I, Tiruppur. The Case was prosecuted in the above
said Court till 07-08-2012. On 07-08-2012, the Case was transferred to
the Fast Track Court, Tiruppur, the Court below herein, and was re-
numbered in S.T.C. No: 147 of 2012. This transfer was done without any
Information or Notice to the Appellant or to his Counsel. Hence the
Appellant is unaware of the Transfer to the Court below. While facts
remaining so, the Court below dismissed the Case on 17-10-2012 under
Section 256 Cr.P.C.
9. I further submit that, thereafter only the previous lower

court inform to me, after that I rushed the present court below and filed
copy application through my counsel on 28-11-2012, and copy made
ready on 04-01-2013 my lower court counsel received a same day and
but didn’t informed me, he informed only on 30-01-2013. There after I
came to our Hon’ble High Court engaged a counsel and filed this present
petition.
10. I humbly further submit that, Due to the above reasons,

there was a delay in filing the above Appeal. I have merit in the above
Appeal. The delay is neither willful nor wanton, hence unless the delay is
condoned; I will be put to irreparable loss and hardship.

condone the delay of 13 days in filing the above this Appeal in
Crl.A.S.R.No: of 2013 on the file of this Honourable Court and
thus render justice.
Solemnly affirmed at Chennai on :

:
this the 04th day of February 2013 and : BEFORE ME
:
having understood the contents of the affidavit
readout and explained in Tamil
and Signed his name in My Presence

ADVOCATE : : CHENNAI
M.P.NO. Of 2013
In
Crl.A. No of 2013
M/s. M. EASAN
INIYAA EASAN
S GANESH BABU

M.P.No: of 2013
IN
Crl.A.SR.No: of 2013
M/s P.R. Creations,

P. Sampath Kumar,
S/o Palanisamy,
Iduvampalayam Post,
Vs
Sivasubramaniam,
PETITION FOR CONDONE DELAY
The Petitioner humbly submits as follows:-
It is therefore prayed that this Honourable Court may be

pleased to condone the delay of 13 days in filing the above this
Appeal in Crl.A.S.R.No: of 2013 on the file of this Honourable
Court and thus render justice.
Dated at Chennai on this the 04th day of February 2013
COUNSEL FOR PETITIONER

M.P.NO. Of 2013
In
Crl.A. No of 2013
PETITION FOR
CODONE THE DELAY
M/s. M. EASAN
INIYAA EASAN
S GANESH BABU

Crl.O.P. No: 7103 of 2013

In
Crl.A.SR. No: 5222 of 2013
In
S.T.C. No: 147 of 2012
(On the File of the JM, Fast Track, Tiruppur)
M/s P.R. Creations,

P. Sampath Kumar,
S/o Palanisamy,
Iduvampalayam Post,
… Petitioner
Vs
Sivasubramaniam,
… Respondent
P. SampathKumar, S/o. Late Palainsamy Gounder, Hindu,

aged about 42 years, residing at No. 28/8A, Chellam Nagar 2 nd street,
Iduvampalayam, Tiruppur, Tiruppur District, now temporarily came
down to Chennai, do hereby solemnly affirm and sincerely state as
follows:-
I submit that, the above Leave Petition came up before this

Hon’ble High Court on 22-03-2013. At the time of hearing, when my
Counsel on Record made submissions before this Hon’ble High
Court, and this Hon’ble High Court directed me to file my
Submissions in the Form of an Affidavit. Hence I submit as follows:
1. I submit that, I worked a Partnership concern named as
“P.R. Creations” consisting Two Partners viz., Puspa and P.E. Velusamy
and the said Partners have given a General Power of Attorney in favour of
me to file and prosecute the Case against the Accused. The said
Partnership Deed and General Power of Attorney are produced herewith.
2. I further submit that, I am running a Manufacturing and

Sale of Hosiery Garments under the Name and Style of P.R. Creations.
The Respondent is the Proprietor of Sri Harini Apparels, dealing in
Manufacturing of Baniyan Items.
3. I submit that, the Respondent gave Purchase Order No: HA-

01-2008 to my company on 23-09-2008 for Manufacturing of Baniyan
Items on Job Work Basis. As per Books of Accounts maintained by the
company regular course of Business Transaction a Sum of Rs.
3,42,006/- (Rupees Three Lakhs Forty Two Thousand and Six only) is
due and payable by the Respondent to the company.
4. I further submit that, when I asked for the Payment, the

Respondent issued Two Cheques to me to discharge Parts Satisfaction of
Liability to the company. At the time of issuing the above Cheques, the
Respondent has assured to me that he will honor the above mentioned
Cheques when it is presented for payment.
5. I further submit that, believing the assurance given by the

Respondent when I presented the above mentioned Two Cheques
through my Bank, Punjab & Sind Bank, Tiruppur on 14-03-2009. But
the above mentioned Cheques have been dishonored due to FUNDS
INSUFFICIENT in the Respondent Account and returned to the company
on 14-03-2009, with a Banker’s Memo stating “FUNDS INSUFFICIENT”.
The Xerox Copy of the Cheques and the Banker’s Memo are also
produced herewith.
6. I further submits that, the Respondent has knowingly issued

the above Cheques without Sufficient Funds in the Respondent’s Bank
Account, only to Delay, Defraud and Cheat the my Legitimate Rights.
Therefore the Respondent committed an Offence under Section 138 of
7. I submit that, after the Dishonor of the Cheques, I issued a
Legal Notice to the Respondent through my Counsel on 19-03-2008
asking the Respondent to pay the Cheques’ Amount within Fifteen days.
The Respondent received the above said Legal Notice on 31-03-2009. The
Respondent has not paid the Cheques’ Amount and not issued any
Reply. The Office Copy of the said Legal Notice and served
8. I filed the Complaint in S.T.C. No: 2030 of 2008 before the

Judicial Magistrate – I, Tiruppur. The Case was prosecuted in the above
said Court till 07-08-2012 and I was also regularly appearing before the
above said Court. For the last 2 hearings i.e. after 07-08-2012, when the
Case was called the Bundle was not produced by the Court Officials
before the Lower Court Magistrate reasoning that the Bundle was
misplaced by the Court Officials. When I asked the Court Officials, they
sought additional Time to find the Mis-Placed Case Bundle. After that,
without any prior Information or Notice to me or to My Counsel, the Case
was transferred to the Fast Track Court, Tiruppur, the Court below
herein, and was re-numbered in S.T.C. No: 147 of 2012. Thereafter the
JM, Fast Track, Tiruppur also ordered No Notice to me or to My Counsel.
Hence I was unaware of the Transfer to the Court below. While facts
remaining so, the Court below dismissed the Case on 17-10-2012 under
Section 256 Cr.P.C.
9. I further submit that, thereafter only the previous Lower

Court informed me, after that I rushed the present Court below and filed
Copy Application through My Counsel on 28-11-2012, and copy made
ready on 04-01-2013 my lower Court Counsel received a same day and
but didn’t informed me, he informed only on 30-01-2013. There after I
came to this Hon’ble High Court engaged the Present Counsel and filed
this present Petition.
10. I humbly further submit that, Due to the above reasons only
I am not able to appear before the Lower Court below. My Non-
Appearance is neither willful nor wanton. Unless this Leave Petition is
allowed, I will be put to irreparable loss and hardship.
allow this Leave Petition to file the Appeal in Crl.O.P. No: 7103 of 2013 in
Crl.A.S.R.No: 5222 of 2013 on the file of this Honourable Court and thus
render justice.
Solemnly affirmed at Chennai on :

:
this the 01st day of April 2013 and : BEFORE ME
:
having understood the contents of the affidavit
readout and explained in Tamil
and Signed his name in My Presence

ADVOCATE : : CHENNAI
Crl.O.P.NO. 7103 of 2013
In
Crl.A.S.R. No 5222 of 2013
M/s. M. EASAN
INIYAA EASAN
S GANESH BABU

CRL Appeal - P.R. Creations (Crl.a.no of 2013) - 138 Nia

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MEMORANDUM OF THE GROUNDS OF CRIMINAL APPEAL

(Under Section 374(2) of Criminal Procedure Code)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.A. No: of 2013

M/s P.R. Creations,

MEMORANDUM OF THE GROUNDS OF CRIMINAL APPEAL

The Address for Service of all notices and processes on the

The Appellant above named begs to prefer this Memorandum of

2. The Appellant further submits that, the Complainant is

3. The Appellant further submits that, the Respondent/Accused

4. The Appellant further submits that, when the Appellant

Sl. No Date Cheque No Drawn on Amount

1. 14-11-2008 000019 Kotak Mahindra Bank Ltd., Rs. 1,00,000/-

2. 02-12-2008 000023 Kotak Mahindra Bank Ltd., Rs. 2,30,000/-

Total Rs. 3,30,000/-

5. The Appellant further submits that, believing the assurance

6. The Appellant further submits that, the Respondent/Accused

7. The Appellant submits that, after the Dishonor of the

8. The Appellant filed the Complaint in S.T.C. No: 2030 of 2008

a) The Judgment of the Court below is against Law and all

It is therefore prayed that this Honorable Court may be pleased to

Dated at Chennai on this the 30th day of January 2013

COUNSELS FOR APPELLANT

HIGH COURT : : MADRAS

COUNSELS FOR PETITIONER

Crl.A. No: of 2013

M/s P.R. Creations,

Sl. No Date Description Page No

1 26-02-2008 Partnership Deed

2 30-04-2009 Power of Attorney

3 25-10-2008 Invoice Copy

4 -- Xerox of the Cheques

6 19-03-2008 Legal Notice

7 31-03-2009 Acknowledgement Card

9 17-10-2012 Judgment in S.T.C. No: 147 of 2012

Dated at Chennai on this the 30th day of January 2013

COUNSELS FOR APPELLANT

HIGH COURT : : MADRAS

TYPED SET OF PAPERS

COUNSELS FOR PETITIONER

HIGH COURT : : MADRAS

S.T.C. No: 147 of 2012

COUNSELS FOR PETITIONER

IN THE HIGH COURT OF JUDICATURE AT MADRAS

M/s P.R. Creations,

PETITION FOR LEAVE TO FILE APPEAL

The Petitioner humbly submits as follows:-

1. The Petitioner submits that, the Petitioner is a Partnership

2. The Petitioner further submits that, the

3. The Petitioner further submits that, the

4. The Petitioner filed the Complaint in S.T.C. No: 2030 of 2008

5. The Petitioner submits that the grounds of appeal may be

It is therefore prayed that this Honourable Court may be pleased to

Dated at Chennai on this the 04th day of February 2013

COUNSEL FOR PETITIONER

HIGH COURT : : MADRAS

PETITION FOR LEAVE TO FILE

COUNSELS FOR PETITIONER

IN THE HIGH COURT OF JUDICATURE AT MADRAS

M/s P.R. Creations,

AFFIDAVIT OF P. SAMPATH KUMAR

P. SampathKumar, S/o. Late Palainsamy Gounder, Hindu,