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2014 DIGILAW 2372 (BOM)

Kunal Impex v. State of Maharashtra

2014-12-01

M.L.TAHALIYANI

body2014
JUDGMENT M.L. TAHALIYANI, J. 1. Heard the learned Counsel Mr. Jatin Shah for the applicant, the learned Counsel Mr. Sachin Bandkar for respondent Nos. 2 and 3 and the learned Additional Public Prosecutor Mr. Ajay Patil, for the State. Perused the order of this Court 4.7.2014 whereby it was directed that the application will be decided finally at the admission stage itself. 2. This is an application for grant of leave to appeal against the judgment and order dated 17.1.2014 passed by the learned Metropolitan Magistrate, 6th Court, Mazgaon at Sewree, Mumbai in C.C. No. 1/SS/2006. Leave granted. 3. Admit. Heard finally by consent of the parties. 4. The respondent Nos. 2 and 3 have been acquitted by the trial Court of the offence punishable under section 138 of Negotiable Instruments Act in Criminal Case No. 3570/SS/2005. 5. Respondent Nos. 2 and 3 were prosecuted by the appellant - M/s. Kunal Impex for the offence punishable under Section 138 of Negotiable Instruments Act. Respondent No. 2 Ekta Corporation is the proprietary firm and the respondent No. 3 is its Proprietor. It was the case of appellant before the trial Court that respondent No. 3 was introduced to the appellant by Mr. Dhananjay Ved. Respondent No. 3 was given loan of Rs. 5,00,000/- by the appellant. Respondent No. 3 had, on behalf of his firm, given a cheque of Rs. 5,00,000/- to the appellant in return of the loan amount. Said cheque was deposited by the appellant in the bank. It was dishonored with the remark account closed. This intimation was received by the appellant on 24.9.2005. The appellant issued notice to the accused by speed post AD as well as by Under Postal Certificate (UPC) on 27.9.2005. The notice was served upon the respondent. The complaint was filed on 13.12.2005 as the cheque amount was not paid to the appellant. 6. During the course of hearing before the trial Court, only one witness was examined on behalf of the appellant. The case was closed by the appellant after examination of one witness, namely, Mr. Dilip Shah. It may be noted here that this Mr. Dilip Shah has filed the complaint on behalf of the appellant/complainant. Mr. Dilip Shah claims to be a partner of the appellant/complainant. The statement of respondent No. 3 was recorded under section313 of Cr. The case was closed by the appellant after examination of one witness, namely, Mr. Dilip Shah. It may be noted here that this Mr. Dilip Shah has filed the complaint on behalf of the appellant/complainant. Mr. Dilip Shah claims to be a partner of the appellant/complainant. The statement of respondent No. 3 was recorded under section313 of Cr. P.C. and the case was finally decided by the impugned judgment and order on 17.1.2014. The learned trial Court framed following points for determination: "(1) Whether disputed cheque was issued by accused in order to discharge his legal liability as alleged by complainant? (2) Whether disputed cheque was dishonored for the reasons 'Account Closed' as alleged? (3-A) Whether statutory notice was served on accused as per requirement of law? (3-B) If yes, whether accused failed to pay the cheque amount within 15 days from the date of service of notice? (4) Whether P.W.1 Dilip Shah was authorized by complainant M/s. Kunal Impex to file complaint case? (5) Whether accused are liable to be convicted for an offence punishable under section 138 of N.I. Act?" 7. The point Nos. 1 to 3-B were answered in favour of the appellant. The last two points i.e. point Nos. 4 and 5 were answered in the negative. The point No. 4 pertains to the authority of PW1 Dilip Shah to file complaint on behalf of the complainant M/s. Kunal Impex. This point has been discussed by the learned trial Court in paragraph 35 onwards of the judgment. Paragraph 37 is relevant for the purpose of deciding the present appeal. Paragraph 37 of the judgment of the trial Court runs as under:- "37. Complaint in this context discloses that it was signed by P.W.1 Dilip Shah. Though it is accepted that P.W.1 Dilip Shah is one of the partner of complainant firm, but complaint filed by one of the partner of complainant firm that does not mean that same is filed by payee. Complainant is partnership firm, wherein there were four partners at the time of filing complaint case. These 4 partners constitutes partnership firm. Section 142(a) of N.I. Act says that complaint must be filed by payee or holder in due course. In disputed cheque, name of complainant firm is appearing as a payee. Complainant is partnership firm, wherein there were four partners at the time of filing complaint case. These 4 partners constitutes partnership firm. Section 142(a) of N.I. Act says that complaint must be filed by payee or holder in due course. In disputed cheque, name of complainant firm is appearing as a payee. Therefore, it was essential for complainant firm to sign complaint by its all partners or all partners should have executed legal document for authorising any person for filing complaint case. But in this case, both these things are not observed. In such facts and circumstances, present complaint case can not be stated to be filed by legally authorised person of complainant firm." 8. The point No. 5 was answered in the negative obviously because of the negative answer to point No. 4. As such, the main issue before this Court while deciding the present appeal is as to whether it was necessary for PW1 Mr. Dilip Shah to file authority letter or to establish before the trial Court that he was authorized to file complaint on behalf of the complainant. 9. It was submitted by learned Counsel Mr. Jatin Shah for the appellant that in fact it was not necessary for the complainant to file any authority letter authorizing PW1 Dilip Shah to give evidence on behalf of the complainant. It is submitted that PW1 Dilip Shah was a Partner of the complainant and, therefore, he was an agent of the complainant. It was contended by the learned Counsel Mr. Jatin Shah that by virtue of the position of PW1 in the Partnership Firm, it was not necessary for the complainant to authorize PW1 Dilip Shah to depose on behalf of the complainant. Mr. Jatin Shah has relied upon the judgment of this Court (Coram: U.V. Bakre, J.) (Goa Bench) in Criminal Revision Application No. 18 of 2014 dated 2nd April, 2014, Reshmi Constructions vs. Laxman Vithal Chunekar Another, 2014 (2) Bom. C.R. (Cri.) 297. This Court after having gone through various judgments of the Hon'ble Supreme Court has come to the conclusion as under: "17. C.R. (Cri.) 297. This Court after having gone through various judgments of the Hon'ble Supreme Court has come to the conclusion as under: "17. From the above provisions of the Act, it is clear that every partner is an agent of the Firm and his other partners for the purpose of business of the firm and the acts of every partner bind the firm and his partners, unless, of course, the partner had, in fact no authority to act for the firm and his other partners. The learned trial Magistrate relied upon the judgment of this Court in the case of Mrs. Alka Toraskar vs. State of Goa and Others, 2006 (2) Bom. C.R. (Cri.) 717 (PB) : 2007(1) Goa L.T. 159 which pertains to a Cooperative Society. The Trial Magistrate further relied upon Fragrant Leasing and Finance Co. Ltd. vs. Jagdish Katuria, 2008 All. M.R. (Cri.) Journal 3 and the judgment in the case of Chico Ursula D'Souza vs. Goa Plast Pvt. Ltd. 2008 (6) Bom. C.R. 399 : 2009 (1) All. M.R. 290 both of which pertain to company. Admittedly, a company is a separate juristic person distinct from its directors or shareholders and the company acts through the resolution passed by the Board of Directors. Because of the above, a person, who claims to represent another, was bound to produce an authority or power which entities him to appear. The above is not a case with the Partnership Firm. As has been already seen above, each partner is an agent of the Firm. In the present case, it was not that some person on the strength of power of attorney holder had filed a complaint and had deposed on behalf of the complainant. The person who had deposed on behalf of the complainant, was one of the partners of the said Complainant. In fact, the agreement dated 5.4.2005 had been signed by same partner Shri Pandharinath Chafadkar (PW1) for himself and as attorney of the other two partners Arun Chafadkar and Narayan Nigalye. The person who had deposed on behalf of the complainant, was one of the partners of the said Complainant. In fact, the agreement dated 5.4.2005 had been signed by same partner Shri Pandharinath Chafadkar (PW1) for himself and as attorney of the other two partners Arun Chafadkar and Narayan Nigalye. In the circumstances above, the finding of the trial Magistrate that there was no authority to PW1 to file the complaint or to depose on behalf of the complainant is not correct." In view of the aforestated judgment of this Court and particularly judgment of the Hon'ble Supreme Court in the matter of M.M.T.C. Ltd. and Another vs. MEDCHL Chemicals and Pharma Pvt. Ltd. and Another, 2002 (1) Bom. C.R. 218 (SC) : (2002) 1 SCC 234 , it is abundantly clear that the complainant was not under obligation to authorize PW1 Dilip Shah to file complaint and to depose on behalf of the complainant as PW1 was a Partner of the complainant. The finding given by the learned trial Court on point No. 4 is, therefore, set aside. It, therefore, follows that the finding given by the learned trial Court on point No. 5 also will have to be set aside and is accordingly set aside. If these two findings are set aside, the result will be that the respondent Nos. 2 and 3 will stand convicted for the offence punishable under section 138 of Negotiable Instruments Act. However, the trial Court will have to be directed to hear the respondent Nos. 2 and 3 and the appellant on the point of sentence. If this Court after setting aside the order of the learned Magistrate passes order of sentence also, the respondents will loose one opportunity of being heard on the point of sentence. For all these reasons, I pass the following order:- ORDER "(i) Criminal Appeal is partly allowed. (ii) The judgment and order dated 17.1.2014 passed by the learned Metropolitan Magistrate, 6th Court, Mazgaon at Sewree, Mumbai in C.C. No. 1/SS/2006 acquitting the respondent Nos. 2 & 3 is set aside. (iii) Respondent Nos. 2 & 3 are found guilty of the offence punishable under section 138 of Negotiable Instruments Act and are, therefore, convicted of the said offence. (iv) The case is remanded back to the trial Magistrate to hear respondent Nos. 2 & 3 is set aside. (iii) Respondent Nos. 2 & 3 are found guilty of the offence punishable under section 138 of Negotiable Instruments Act and are, therefore, convicted of the said offence. (iv) The case is remanded back to the trial Magistrate to hear respondent Nos. 2 and 3 and the appellant on the point of sentence and to decide the case within a period of 15 days from the date of receipt of this order. The learned Magistrate is directed to act upon an authenticated copy of this order. (v) Respondent Nos. 2 & 3 and the appellant to appear before the trial Magistrate on 15.12.2014. (vi) Parties to act upon an authenticated copy of this order." Appeal Partly Allowed.