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2012 DIGILAW 493 (RAJ)

Dinesh Bansal v. Rajendra Kumar

2012-02-21

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—The appellant, Dinesh Bansal, is aggrieved by the judgment dated 25.11.2008 passed by Judicial Magistrate (1st Class), Abu Road, District Sirohi, whereby the learned Magistrate has acquitted the respondent, Rajendra Kumar Agarwal, for offence under Section 138 of the Negotiable Instruments Act ('the Act', for short). 2. Briefly, the facts of the case are that Dinesh Bansal had submitted a complaint under Section 138 of the Act, and under Section 420 IPC, wherein he had claimed that Rajendra Kumar Agarwal had taken loans from him on different dates. In order to repay the loan, he had given a cheque, bearing No.0422692, dated 14.07.2004, for an amount of Rs.2,80,182/-. When the said cheque was deposited for encashment, it was dishonoured. Subsequently, the complainant sent a registered notice on 17.07.2004 to the accused-respondent. However, accused-respondent came to the complainant and told him that his economic condition was not too well. Therefore, adding an interest @ 36% for the amount due, the accused-respondent gave him another cheque, Cheque No.422696, for total amount of Rs.2,97,120 on 14.09.2004. The said cheque was deposited for encashment. However, on 15.09.2004, the said cheque was also dishonoured. Therefore, on 28.09.2004, the appellant sent a registered notice to the accused-respondent, which was received by him on 29.09.2004. Despite having received the notice, the accused-respondent failed to repay the loan amount. 3. In order to support his case, the complainant examined himself as a witness and submitted nine documents. In turn, although the accused-respondent did not examine any witness, but he did submit two documents. After going through the oral and documentary evidence, vide judgment dated 25.11.2008, the learned Magistrate acquitted the accused-respondent. Hence, this criminal leave to appeal before this Court. 4. Mr. Shambhoo Singh, the learned counsel for the appellant, has vehemently contended that the learned Judge has erred in concluding that the complaint could not be filed against the accused-respondent without arraying the firm, M/s. Rajendra Kumar Bhanwarlal, as an accused. For, according to the learned counsel, the loan had been taken by Rajendra Kumar for his personal necessities, and not for the benefit of the firm. Secondly, the learned Judge was not justified in concluding that the cheque in question could not have included the interest amount. Therefore, according to the learned counsel, the impugned judgment deserves to be interfered with. Mr. Secondly, the learned Judge was not justified in concluding that the cheque in question could not have included the interest amount. Therefore, according to the learned counsel, the impugned judgment deserves to be interfered with. Mr. Shambhoo Singh has relied on the case of Shankar Finance & Investments vs. State of Andhra Pradesh & Ors.( (2008) 8 SCC 536 ) in order to raise the contention that in case the proprietor has been added as an accused, it is not necessary to array the firm as an accused-respondent. He has further relied upon the case of Rajneesh Aggarwal vs. Amit J. Bhalla ( (2001) 1 SCC 631 ) to contend that a notice issued to the proprietor is sufficient for the purpose of Section 138 of the Act. Therefore, according to the learned counsel, the impugned judgment deserves to be interfered with. 5. On the other hand, Mr. Surendra Surana, the learned counsel for the accused-respondent, has vehemently contended that according to the complainant, the loan was taken by Rajendra Kumar for the need of the firm, and not for his personal needs. It was not the case of the complainant that Rajendra Kumar had taken loan for his personal needs. This would be obvious from the testimony of the complainant, Dinesh Kumar Bansal (P.W.1). Secondly, the cheque could not have included the interest amount. Thus, the learned Judge was certainly justified in rejecting the complaint. Hence, the learned counsel has supported the impugned judgment. 6. Heard the learned counsel for the parties, and perused the impugned judgment. 7. The learned counsel for the appellant has contended that the loan amount was taken by Rajendra Kumar, not for the purpose of business of his firm, but for his own personal necessities. However, this contention is belied by the testimony of Dinesh Kumar Bansal. In his examination-in-chief, Dinesh Kumar Bansal merely states that he knows accused Rajendra Kumar, who carries on the business of Revdar through his firm M/s. Rajendra Kumar Bhanwarlal. He claimed that on different dates Rajendra Kumar had borrowed money from him. He further claimed that on 14.07.2004 he had given him a cheque of Rs.2,80,182/-. Therefore, in his examination-in-chief, he does not tell the Court that the said amount was borrowed by Rajendra Kumar for his personal needs. He claimed that on different dates Rajendra Kumar had borrowed money from him. He further claimed that on 14.07.2004 he had given him a cheque of Rs.2,80,182/-. Therefore, in his examination-in-chief, he does not tell the Court that the said amount was borrowed by Rajendra Kumar for his personal needs. Moreover, during the course of his cross-examination, a specific question was put to him, which is as under: Question -“You have neither sent a notice to the firm M/s. Rajendra Kumar Bhanwarlal, nor have you arrayed the firm as an accused party”. Answer - “Rajendra Kumar happens to be the proprietor of the firm, who has issued the cheque. Therefore, I have sent the notice only to the proprietor and made him as the only accused”. Therefore, even while answering this question, Dinesh Kumar does not claim that Rajendra Kumar had taken the loan for his personal needs. A bare perusal of the answer seems to imply that, in fact, the loan amount was taken for business purposes of the firm by the proprietor. Therefore, the first contention raised by the learned counsel is unacceptable. 8. The learned counsel has relied on the case of Shankar Finance & Investments (supra). However, the reliance is highly misplaced. The issue before the Hon'ble Supreme Court in the aforementioned case was whether a power of attorney could submit a complaint or not? In the said case, the Apex Court had opined that in case the power of attorney has been executed properly, a complaint could be filed by power of attorney holder on behalf of the payee proprietory concern. It is, in connection with this issue, that the Apex Court had observed that under civil law a person carrying on business in the name and style other than his own name, he cannot sue in the trading name but must sue in his own name, though others can sue him in the trading name. However, since a criminal complaint has been filed under Section 138 of the Act, the same could be filed in the name of the firm. However, this is not the issue, which is involved in the present case. Therefore, the said case of Shankar Finance & Investment (supra) does not come to the rescue of the appellant. Even the case of Rajneesh Aggarwal (supra) is distinguishable on the factual matrix. However, this is not the issue, which is involved in the present case. Therefore, the said case of Shankar Finance & Investment (supra) does not come to the rescue of the appellant. Even the case of Rajneesh Aggarwal (supra) is distinguishable on the factual matrix. Therefore, even the said case does not buttress the contention raised by the learned counsel for the appellant. 9. A bare perusal of the impugned judgment clearly reveals that the learned Judge has given the following reasoning for acquitting the accused-respondent: Firstly, the learned Judge has noticed the fact that the complaint was not filed after the first cheque was dishnoured; instead the complaint was filed after the second cheque was dishonoured. Secondly, in the complaint, the complainant has not mentioned the fact that Rajendra Kumar is responsible for day to day functioning of the firm. Thirdly, the second cheque included the interest of 36%. Fourthly, the firm was never impleaded as an accused. Since cogent reasons have been given by the learned Magistrate for acquitting the accused-respondents, this Court does not find any illegality, or perversity in the impugned judgment. 10. This criminal leave to appeal being devoid of any merit, is, hereby, dismissed.