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Madhya Pradesh High Court · body

2008 DIGILAW 1301 (MP)

Daccan Lubus v. Chakradhar Constructions

2008-11-06

N.K.MODY

body2008
ORDER 1. Being aggrieved by the judgment dated 31.10.2007 passed by JMFC, Indore in Criminal Case No. 3386/07, whereby a private complaint filed by the appellant under section 138 of Negotiable Instruments Act (which shall be referred hereinafter as "Act") was dismissed, the present appeal has been filed. 2. Short facts of the case are that the appellant-firm filed a complaint under section 138 of the Act on 30.9.2000 through its partner Manik Rao Patel alleging that against the supply made by appellant-firm, respondent issued cheque of Rs. 2,50,000/- bearing cheque No. 4152893 dated 30.6.2003 of Akola-Janata Commercial Cooperative Bank Ltd., Akola Branch, Jalgaon. It was alleged that the aforesaid cheque was presented by the appellant-firm through its banker Bank of India, Branch Satha Bazar, Indore for collection on 16.12.2003. But the same was returned with a memorandum issued by the concerned bank to the effect "stop payment". It was alleged that thereafter a notice of demand was issued by the appellant-firm which was duly served on the respondent. But inspite of that the cheque amount was not paid. It was alleged that by not clearing the cheque respondent has committed an offence which is punishable under section 138 of the Act. It was prayed that after taking cognizance the respondent be punished. 3. After taking cognizance and also after framing of charge and recording of evidence, learned trial Court dismissed the complaint filed by the appellant-firm against which the present appeal has been filed. 4. During the course of hearing IA No. 4759/08 has been filed by the appellant-firm wherein it was prayed that appellant-firm be permitted to submit additional documents copies of which are enclosed along with the application. In the application it is submitted that all the relevant documents relating to the transaction were handed over by the appellant-firm to the counsel for the appellant. But the same was not filed for the best reasons known to the advocate. It is submitted that since the appellant-firm changed the advocate and after knowing the fact that the documents has not been filed, the appellant-firm contacted the advocate and obtained some of the documents which were filed by the appellant-firm before the learned Court below. It was further submitted that after dismissal of the complaint again appellant-firm contacted the lawyer and obtained rest of documents which are being filed along with the application. It was further submitted that after dismissal of the complaint again appellant-firm contacted the lawyer and obtained rest of documents which are being filed along with the application. It was submitted that in the facts and circumstances of the case appellant-firm be permitted to adduce further evidence to support its case on merits. 5. Learned counsel for the appellant-firm submits that the learned Court below has dismissed the complaint on two grounds. Firstly that [2009 (III) the complaint has been filed through partner of the appellant-firm who has no locus at all and the partners has not been joined to file the complaint. Secondly on the ground that the relevant documents has not been filed by the appellant-firm to show the complete transaction. Learned counsel submits that since the complaint has been filed by the appellant-firm which is a partnership firm through Manik Rao Patel one of the partner of the appellant-firm of which the partnership-deed has been filed as Ex.P-10, therefore, the findings of the learned Court below that the partner Manik Rao Patel was having no locus to file the complaint is illegal. For this contention reliance is placed on a decision in the matter of Brijlal v.Jugat Kishore, reported in V-1995 (2) Crimes Page 636, wherein the complaint was filed by the partnership firm through its partner under section 138 of Negotiable Instruments Act, Bombay High Court held that the complaint suffers no illegality of not being filed by proper person.Further reliance was placed on a decision in the matter of Gallesh Sukhlal Joshi v. M.A. Bharati, reported in IX-1996 (3) Crimes page 402 wherein the complaint was filed by one of the partners of firm under section 138 of the Act, Bombay High Court held that there was no difficulty for complainant partner to file complaint in his capacity as partner of firm and the finding that complaint was not properly filed is erroneous and cannot be sustained. 6. So far as the findings of the learned trial Court relating not to file the necessary documents are concerned, learned counsel for the appellant submits that originally Shri C.P. Singh was the counsel for the appellant to whom all the relevant documents were given by the appellant-firm at the time of filing of the complaint. 6. So far as the findings of the learned trial Court relating not to file the necessary documents are concerned, learned counsel for the appellant submits that originally Shri C.P. Singh was the counsel for the appellant to whom all the relevant documents were given by the appellant-firm at the time of filing of the complaint. It is submitted that the fact that the documents has not been filed by the counsel for the appellant before the learned Court below came to the notice of appellant for the first time when Shri Manik Rao Patel partner of the appellant-firm appeared before the learned Court below for cross examination on 20.12.2006. It is submitted that at that time Shri C.P. Singh was not the counsel of the appellant. The moment appellant came to know that the necessary document has not been filed, appellant through its partner approached to the concerned advocate and obtained some of the documents which were filed by the appellant before the learned Court below along with application with a prayer to allow the appellant-firm to produce the documents in evidence. It is submitted that the said application was dismissed by the learned trial Court against which a revision petition was filed by the appellant which was allowed by the revisional Court vide order dated 31.10.2007 andappellant-firm was directed to produce the documents in additional evidence. It is submitted that it is only after dismissal of the complaint appellant-firm again approached to Shri C.P. Singh advocate who has handed over the rest of the documents which are being filed along with the application. In the fact and circumstances of the case learned counsel for the appellant submits that the application filed by the appellant under section 391 CrPC be allowed and appellant be permitted to adduce the evidence. It is submitted that in the fact and circumstances of the case after setting aside the judgment passed by the learned Court below, case be remitted back to the learned Court below with a direction to allow the appellant to adduce further evidence. 7. Learned counsel for the respondent submits that the judgment passed by the learned Court below is based on due appreciation of evidence adduced by the parties. It is submitted that the appellant cannot be allowed to fill up the lacuna. 7. Learned counsel for the respondent submits that the judgment passed by the learned Court below is based on due appreciation of evidence adduced by the parties. It is submitted that the appellant cannot be allowed to fill up the lacuna. Learned counsel submits that in the facts and circumstances of the case the application and the appeal filed by the appellant-firm be dismissed. 8. From perusal of the-record, it is evident that the complaint was filed by the appellant-firm through its partner Manik Rao Patel. The partnership deed Ex. P-10 is on record. Keeping in view the provision of Partnership Act and the law laid down in the matter of Brijlal v. Jugal Kishore (supra) this Court is of the view that the findings of the learned Court below that Manik Rao Patel was having no locus standi to file the complaint is illegal and cannot be allowed to sustain. Since the complaint was filed by the appellant-firm through its partner, therefore, there was no justification on the part of the learned Court below in dismissing the complaint. 9. So far as the application filed by the appellant under section 391 CrPC is concerned, section 391 CrPC reads as under: "Appellate Court may take further evidence or direct it to be taken- 1. In dealing with any appeal under this Chapter, the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the appellate Court is a High Court, by a Court of Session or a Magistrate." 10. From perusal of the record, it is evident that initially when the complaint was filed on 20.2.2004 no document was produced by the appellant-firm to show that transaction of Rs. 2,50,000/- as the appellant was a firm and according to the appellant the cheque amount was towards the supply of articles by the appellant-firm. Even if it is assumed for the sake of argument that this fact was not in the notice of appellant-firm that the documents has not been filed by the advocate of the appellant-firm and this fact came to the notice on 20.12.2006 when Manik Rao Patel appeared before the learned Court below for his cross-examination, then too, the application was allowed by the revisional Court and the appellant-firm was permitted to adduce additional evidence. After dismissal of the complaint it is alleged in the application again appellant-firm approached to the former counsel of the appellant-firm and collected the rest of the documents. In the matter of Rambhau v. State of Maharashtra, AIR 2001 SC page 2120 wherein the Hon'ble apex Court has held that "the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under S. 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub-serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, S. 391 is thus akin to O.41, R. 27 of the C.P. Code." 11. In view of the aforesaid position it can safely be said that by moving the application appellant-firm intends to fill up the lacuna which may not be permitted at this stage. In view of this application stands dismissed. So far as the merits of the case is concerned the cheque is of Rs. 2,50,000/- which was bearing the dated 30.9.2000 initially. Thereafter the date was altered as 30.6.2003 and the cheques was submitted for collection on 2.12.2003 i.e. after 5 months from the date mentioned in the cheque, for which there is no sufficient explanation on the part of the appellant. Even in the complaint it is not stated by the appellant-firm that the cheque was dated 30.9.2000 initially which was later on altered as 30.6.2003 and revalidated. In the facts and circumstances of the case this Court is of the view that no illegality has been committed by the learned Court below in dismissing the complaint filed by the appellant-firm. In view of this appeal has no force hence appeal stands dismissed.