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1995 DIGILAW 477 (BOM)

Ganesh Sukhlal Joshi v. M. A. Bharati

1995-09-26

R.M.LODHA

body1995
JUDGMENT RM. Lodha, J. - All the aforesaid five criminal appeals arise out of the common judgment of acquittal passed by the Judicial Magistrate, First Class, Nagpur in all five criminal cases and, therefore, these five criminal appeals have been heard together and are disposed of by this common judgment. 2. Five different complaints were filed by the present appellant Ganesh Sukhlal Josru, Partner of M/s. Nagpur Chemical Agency (for short, the 'complainant') against the respondent No.1 MA Bhamti, Managing Director, M/s. Nagpur Detergent Private Limited, C-27 MIDC Hingna Road, Naagpur (for short, the 'accused') in the Court of the Judicial Magistrate, First Class, Nagpur for the offence punishable under Section 138 of the Negotiable Instruments Act. For the purposes of the facts, Complaint No. 1125 of 92 filed by the complainant against the accused may be adverted to. According to the complainant, it has been supplying sodium tripoly phosphate and sulphonic acid to the accused and on 10.12.91 vide Order No. NDPL/42/91-92, complainant supplied Scid Clurry to the accused for consideration of Rs. 3,69,984.21. Accused issued cheques towards part payment of the aforesaid amount. The complainant presented the cheques to the State Bank ofIndia and the said cheques were returned by the Bankers with the endorsement "exceeds arrangement". On receipt of the intimation from the Bankers about the dishonour of cheques for insufficient funds in the Bank account of the accused, complainant issued statutory notice asking the accused to pay amount of cheque within 15 days therefrom. According to the complainant, it false reply was sent by the accused and failed to make payment of the said amount and consequently, the complaint case was filed. 3. On the basis of the said complaint, trial commenced and statement of accused under Section 313 of the Criminal Procedure Code was recorded. The Trial Court after recording the evidence, documentary as well as oral and hearing the learned Counsel for parties, held that the complaint has not been properly filed and that it is not proved that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act and consequently, accused was acquitted of the offence under Section 138 of the Negotiable Instruments Act in all the cases giving rise to all these five criminal appeals against the judgment of acquittal. 4. 4. I have heard the learned Counsel for the appellant and the respondents in all these criminal appeals and with their assistance, I have perused the judgment of acquittal passed by the Trial Court on 18.10.93 and also relevant evidence available on record. 5. Mr. Kaptan, the learned Counsel for complainant submitted that the complaint was filed by the complainant in his capacity of Paitner of M/s. Nagpur Chemical Agency and there was no infirmity in filing the complaint case by one of the partners of the Firm and the Trial Court seriously erred that the complaint filed by the complainant was not maintainable. In support of his contention, Mr. Kaptan relied upon the decision of this Court in Brijla1 v. Jugalkishor1. Mr. Kaptan also contended that the Trial Court seriously erred in holding that the complainant has not been able to prove that the cheques were drawn by the accused in discharge of some liability. According to the learned Counsel, under Section 139 of the Negotiable Instruments Act, the presumption was that the c1K'ques had been drawn by the accused in favour of the complainant in discharge of debt or other liability and, therefore, it was necessary for the accused to discharge the burden cast upon him. The learned Counsel, thus, contended that the accused having failed to dislodge the presumption or having failed to discharge the burden cast upon him, the finding of the Trial Court is not justified. 6. As against this, Mr. S.V. Purohit, the learned Counsel for respondent No. 1 in an these appeals submitted that on the basis of the material available on record, the Trial Court did not commit any error in holding that the complaint was not maintainable. It is also contended by Mr. Purohit that there was no legal evidence available on record to prove that the cheques were issued by the accused In discharge of any liability and the Court below did not commit any error in acquitting the accused in the absence of any legal evidence led by complainant to establish that cheques were issued in discharge of the liability. Mr. Purohit also contended that the accused was only the Managing Director of M/s. Nagpur Detergent Private Limited and since the Company has not been imp leaded as accused, under Section 141 of the Negotiable Instruments Act, the accused could not have been held guilty. 7. Mr. Purohit also contended that the accused was only the Managing Director of M/s. Nagpur Detergent Private Limited and since the Company has not been imp leaded as accused, under Section 141 of the Negotiable Instruments Act, the accused could not have been held guilty. 7. I have considered the contentions raised by the learned Counsel for the parties and perused the impugned judgment of acquittal passed by the learned Magistrate and also considered the available material on record. 8. On perusal of the complaint, it is seen that the complainant is shown as "Shri Ganesh Sukhlal Joshi, Partner of M/s. Nagpur Chemical Agency, Nagpur". In this view of the matter, there was no difficulty for the complainant Ganesh Sukhlal Joshi to file complaint case in his capacity as Partner of M/s. Nagpur Chemical Agency and the finding recorded by the Trial Court that the complaint was not properly filed, is on its face, erroneous and cannot be sustained In Brijlal v. Jugalkishore (supra), this Court has held that the complaint by one of the partners cannot be faulted and when the complaint is filed by one by one of the partner of the firm, it suffers from no infirmity. On the face of the available material, in my view, it cannot be said that the complaint was not properly filed and the finding recorded by the Trial Court in that regard cannot be sustained and is liable to be quashed and set aside and is accordingly, set aside. 9. As regards the finding recorded by the Trial Court that the liability of the accused is not proved and that the complainant has failed to prove this aspect under Section 138 of the Negotiable Instruments Act, in my view, the Trial Court over-looked and ignored Section 139 of the Negotiable Instruments Act which provides presumption in favour of the holder. As regards the finding recorded by the Trial Court that the liability of the accused is not proved and that the complainant has failed to prove this aspect under Section 138 of the Negotiable Instruments Act, in my view, the Trial Court over-looked and ignored Section 139 of the Negotiable Instruments Act which provides presumption in favour of the holder. According to Section 139 of the said Act, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the Negotiable Instruments Act, for the discharge in whole or in part of any debt or any oilier liability unless the contrary is proved In this view of the matter, there was presumption in favour of the complainant, who was holder of the cheque, that the cheque received was of the nature referred to in Section 138, of the Act for the discharge in whole or in part of any debt or any other liability and the accused was required to dislodge the presumption under Section 139 of the Negotiable Instruments Act. Admittedly, no evidence has been led by the accused to rebut the presumption under Section 139 of the Negotiable Instruments Act. Be that as it may, this aspect has not at all been considered by the Trial Court and the provisions of Section 139 of the Negotiable Instruments Act are altogether ignored and overlook-ed. Suffice it to observe that the finding recorded by the Trial Court on point No.2 also cannot be sustained and it would be in the fitness of things if the matter is sent back to the said Court for fresh decision in accordance with law. 10. Consequently, these criminal appeals are allowed and the judgment of the Trial Court dated 18.10.93 passed in all five criminal complaint cases viz. Criminal Complaint Case Nos. 1125 of 92, 1499 of 92, 1426 of 92,1427 of 92 and 1498 of 92 are quashed and set aside and the 20th Jt. Civil Judge, JD Judicial Magistrate, First Class, Nagpur is directed to decide the aforesaid criminal complaint cases afresh in accordance with law. Parties are directed to appear before the Trial Court on 6.11.95. Appeals allowed. 1. 1995(2) Crimes 636 .