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Madhya Pradesh High Court · body

2013 DIGILAW 969 (MP)

Sanjay Sawaldas Katariya v. Export Automobiles

2013-08-16

N.K.Gupta

body2013
ORDER 1. The applicant was convicted for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short “N.I. Act”) and sentenced with three months’ simple imprisonment along with fine of Rs. 26,000/- vide judgment dated 19.8.1999 passed by the JMFC Bhopal (Shri Devnarayan) in RT No. 1682/1998. In Criminal Appeal No. 165/1999 and 170/1999 the 9th Additional Sessions Judge, Bhopal Vide judgment dated 27.9.1999 partly allowed the appeal by which the conviction was maintained but the sentence relating to jail sentence was set aside and the amount was enhanced from Rs. 26,000/- to Rs. 30,000/-, whereas appeal filed by the respondent for enhancement of the sentence was dismissed. Being aggrieved with the jugments of both the Courts below, this criminal revision is preferred by the applicant. 2. The prosecution case, in short, is that the complainant/respondent had supplied some spare parts of motor vehicles to the firm M/s Cozy Drive and a cheque was issued on 22.11.1997 for part payment of Rs. 51,000/-. When the cheque was produced before the concerned bank on 27.11.1997, it was dishonoured due to insufficient funds. A notice Ex. P-5 was given to the firm, but no payment was made by anyone, and therefore, a complaint was lodged by the complainant/respondent. 3. Sunil Beri (PW 2) and the witness Ramprakash Beri (PW 1) were examined before the trial Court. The applicant-accused abjured his guilt but he did not produce any defence evidence. 4. The learned trial Court after considering the evidence adduced by the complainant, convicted and sentenced the applicant as mentioned above, whereas the joint appeal filed by the applicant and the co-accused was partly allowed and the jail sentence was removed. 5. I have heard the learned counsed for the parties at length. 6. Learned counsel for the applicant submits that the applicant was the Manager in the Proprietary concerned of the co-accused Kanhaiyalal and he did not issue any cheque, therefore according to the provistions of section 138 of the N.I. Act, he could not be convicted for such any offence. Under such circumstances, it is prayed that the conviction as well as the sentence may be set aside. 7. On the other hand, learned counsel for the respondent No. 1 has submitted that the applicant and the co-accused were convicted by both the Courts below. Under such circumstances, it is prayed that the conviction as well as the sentence may be set aside. 7. On the other hand, learned counsel for the respondent No. 1 has submitted that the applicant and the co-accused were convicted by both the Courts below. The applicant was the Manager of the firm and he was responsible for payment of the amount. No illegality or irregularity is visible in the impugned judgments passed by both the Courts below. 8. After considering the submissions made by the learned counsel for the parties, it is to be considered as to whether the applicant was not responsible for issuance or payment of the cheque. According to the provisions of section 138 of the N.I. Act, any individual issues a cheque is responsible for the offence, if cheque is dishonoured and no payment has been made after receiving the demand notice. In the present case, it is apparent that the cheque was issued by the co-accused Kanhaiyalal. 9. In this connection, the provisions of section 141 of the N.I. Act may also be perused, in which it is shown that if the defendant is a company or a partnership firm, then there would be change in the responsibility. If the defendant is a partnership firm, then a person responsible for payment shall be liable for the offence under section 138 of the N.I. Act, the learned counsel for the applicant has challenged that the firm “M/s Cozy Drive” was a proprietary concerned with the pretext that on the cheque it was mentioned below the signature of the co-accused Kanhaiyalal that he was Proprietor. However, this point is nowhere raised before both the Courts below. In a criminal revision, the revisionary Court has to seen as to whether any illegality or perversity is done by the Courts below or not. Under such circumstances, any new ground which is dependent upon the facts cannot be raised before the revisionary Court. In the present case, such objection is nowhere raised by the applicant before both the Courts below. It would be apparent that the prosecution was initiated against the M/s Cozy Drive and it was shown that the applicant was one of the representatives of that firm. Similarly, the applicant did not file any appeal separately. If the cause title shown in the appeal is perused, then the appeal was filed by M/s Cozy. It would be apparent that the prosecution was initiated against the M/s Cozy Drive and it was shown that the applicant was one of the representatives of that firm. Similarly, the applicant did not file any appeal separately. If the cause title shown in the appeal is perused, then the appeal was filed by M/s Cozy. Drive through both the applicants and the Additional Sessions Judge divided the cheque amount in two parts, and therefore imposed fine in such a manner so that out of fine deposited by both the accused, the entire cheque amount may be meted out and it may be provided to the complainant. It was for the applicant to raise such an objection before the appellate Court. In such a case the appellate Court impose entire fine upon the co-accused Kanhaiyalal, because counter appeal was also pending, but no such ground was raised before the appellate Courts. It appears that such a plea is taken before this Court to get 50% of the compensation back from the complainant. 10. In this connection, the statement given by Sunil Beri (PW 2) in his cross examination is very important. He was asked as to why he mentioned “M/s Cozy Drive” to be a firm in the notice Ex. P-5, whereas on the cheque it was mentioned that the cheque was issued by one of the Proprietor of M/s Cozy Drive, then he replied that he was not aware as to whether “M/s Cozy Drive” was a partnership or sole proprietor. He has specified that the notice was given to the firm M/s Cozy Drive, which was received by the applicant Manager, and therefore it was the duty of the applicant to inform the owners of the firm and to arrange for payment, but no payment was tendered thereafter. Under such circumstances, the complainant did not accept that the firm M/s Cozy Drive was a Proprietary concerned and not a partnership firm. 11. If any partnership firm which is not registered according to the Partnership Act, then each partner of the firm may iention himself to be one of the proprietors of the firm, hence by the word “proprietor” below the signature of the co-accused Kanhaiyalal on the cheque does not prove specifically that the M/s Cozy Drive was a proprietary concerned. 11. If any partnership firm which is not registered according to the Partnership Act, then each partner of the firm may iention himself to be one of the proprietors of the firm, hence by the word “proprietor” below the signature of the co-accused Kanhaiyalal on the cheque does not prove specifically that the M/s Cozy Drive was a proprietary concerned. No evidence was led by both the accused persons, and hence it was not establised that the M/s Cozy Drive was a proprietary concerned. 12. When it is doubtful that the firm in question was a partnership firm, then all the persons who were responsible for the payment are liable for conviction under section 138 of the N.I. Act according to the provisions of section 141 of that Act. It is true that the cheque was issued by the co-accused Kanhaiyalal and it was dishonoured for want of appropriate funds in the account. The notice was given in the name of the firm which was received by the applicant and he was the Manager for the payment. Under such circumstances, the applicant was also responsible for the payment of the same and therefore he was liable for the conviction under section 138 of the N.I. Act, in the light of the provisions of section 141 of the N.I. Act. When the applicnat did not raise such an objection either before the trial Court or the appellate Court, then an objection dependents upon the factual aspect could not be raised before this Court, because when no opportunity was received by various Court below to consider the objection, then an objection dependent upon the factual position cannot be raised in the revision, because in the revision no resolution can be made by the revisionary Court for a question which is dependent upon the facts. 13. On the basis of the aforesaid discussion, it would be apparent that the applicant was also liable for payment of the cheque and he received the notice sent by the respondent No. 1. Under such circumstances, both the Courts below did not commit any mistake or illegality in convicting the applicant for the offence under section 138 of the N.I. Act. 14. Under such circumstances, both the Courts below did not commit any mistake or illegality in convicting the applicant for the offence under section 138 of the N.I. Act. 14. So far as the sentence is concerned, the appellate Court has already set aside the jail sentence and the fine was imposed upon the applicant dependent upon the amount of the cheque, and therefore it cannot be said that an extraneous fine has been imposed upon the applicant. There is no basis by which any interference in the fine amount imposed upon the applicant by the appellate Court may be done. Therefore, no interference can be done either in the conviction or in the fine imposed upon the applicant by which the present criminal revision filed by the applicant can be accepted. Consequently, it is hereby dismissed. 15. A copy of this order be sent to both the Courts below along with their records for information and compliance, if any.