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2015 DIGILAW 1280 (KAR)

Halappanavar Agro Chemicals v. Kedarnath Jajee

2015-11-24

R.B.BUDIHAL

body2015
JUDGMENT : Budihal R.B., J. 1. This is an appeal preferred by the appellant-complainant being aggrieved by the judgment and order of acquittal dated 15.10.2009 passed in c.c. No. 366/2005 by the JMFC II Court, Belgaum, wherein the complaint filed by the present appellant u/S. 200 of Cr.P.C. for the alleged offence punishable u/S. 138 of N.I. Act was dismissed and accused was acquitted. Against the said judgment and order of acquittal, the complainant is before this Court. 2. Brief facts of the case of the complainant are that, the appellant is a partnership firm registered under the Partnership Act, 1932, dealing with Agro Chemicals under the name and style of M/s. Halappanavar Agro Chemicals and carrying out its business at Belgaum and Gulbarga. The respondent-accused is the partner in M/s. Jaji Pesticides dealing in Agro Chemicals and used to place order from the appellant firm on 05.10.2002, 17.10.2002 and 15.10.2002. As per the order of the accused, the complainant dispatched the pesticides on the above date of the total value of Rs. 1,82,430/- which was the balance due from the respondent herein. After paying Rs. 30,000/- by way of demand draft on 12.06.2003, on repeated requests and demand by the appellant herein, the respondent-accused issued a cheque bearing No. 0192515 dated 15.07.2003 as a partner of Jaji Pesticides Firm drawn on Bank of India, Gulbarga. When the said cheque was presented for encashment by the appellant through his banker Karnataka Bank Ltd., Mal Maruti Branch, Belgaum, it was returned with a memo of intimation dated 29.07.2003 that 'account closed'. Appellant issued legal notice dated 01.08.2003 and brought to his notice dishonour of the cheque and demanded to comply the same. The notice was served on 05.08.2003 but the respondent neither replied the notice nor complied the demand of payment of due amount. Hence, the appellant-complainant filed a private complaint before the trial Court alleging that the respondent-accused has committed the offence punishable u/S. 138 of the N.I. Act. In response to the summons issued by the Court below the respondent-accused herein appeared before the trial Court and has participated in the trial. 3. On behalf of the complainant P.W. 1 Nagaraj Hanamant Pyate was examined and on behalf of the accused D.W. 1 to 3 were examined. Documents Exs. P1 to P. 15 got marked on the side of the complainant and documents Exs. 3. On behalf of the complainant P.W. 1 Nagaraj Hanamant Pyate was examined and on behalf of the accused D.W. 1 to 3 were examined. Documents Exs. P1 to P. 15 got marked on the side of the complainant and documents Exs. D1 to D8 got marked on the side of the defence. After considering the merits of the case, ultimately the trial Court acquitted the accused for the alleged offence under Section 138 of Negotiable Instruments Act. Being aggrieved by the same, the appellant/complainant is before this Court. 4. Heard the arguments of the learned counsel appearing for the appellant/complainant and also the learned counsel appearing for the respondent/accused. 5. Learned counsel appearing for the appellant made the submission that the trial Court wrongly dismissed the complaint and acquitted the respondent/accused in this case. He made the submission that issuance of the cheque as per Ex. P1 by the respondent/accused is not in dispute. He also made the submission that though during the course of the trial it was transpired that there are two firms M/s. A.K. Jajee and M/s. Jajee Pesticides. But during the course of cross-examination the respondent/accused admitted that he is partner in both the firms. Hence, learned counsel submitted in view of this admission the trial Court ought to have convicted the accused. He also submitted that the oral evidence adduced by PW1 so also the documents produced in the case were not properly appreciated by the trial Court. It is also his submission that the trial Court relied upon a decision of Krishna Janardhan Bhat's case, so far as presumption and rebuttal of the said presumption are concerned, learned counsel submitted that the principle in the said decision has been overruled by the subsequent Larger Bench decision in Rangappa v. Shrimohan passed in the year 2010. Hence, he submitted that the lower Court is not correct in placing reliance on the decisions which has been already overruled by the larger Bench of the Hon'ble Supreme Court. Hence, he submitted that as the materials were supplied to the respondent/accused firm, which is supported by the documentary evidence. The cheque Ex. P1 was issued for discharge of the said goods. Hence, learned counsel submitted that all these evidentiary materials both oral and documentary were wrongly read by the trial Court and the trial Court proceeded to acquit the accused. The cheque Ex. P1 was issued for discharge of the said goods. Hence, learned counsel submitted that all these evidentiary materials both oral and documentary were wrongly read by the trial Court and the trial Court proceeded to acquit the accused. Hence, he submitted that the complainant has proved his case beyond reasonable doubt and he submitted to allow the appeal and to set aside the judgment and order of acquittal passed by the trial Court and to convict the respondent/accused for the offences punishable under Section 138 of Negotiable Instruments Act. In support of his case the learned counsel for the appellant/complainant relied upon the judgment of the Hon'ble Supreme Court in the case of Rangappa v. Snmohan rendered in Crl. Appeal No. 1020/2010 arising out of SLP (Crl.) No.407/2005. Learned counsel for the appellant/complainant also made the submission that, the Section 20 of the Indian Partnership Act is also relevant in this case and he made the submission that the respondent/accused was authorized to deal with on behalf of the partnership firm. Therefore, he alone has been made as a party. 6. Per contra, learned counsel appearing for the respondent/accused during the course of his argument made the submission that firstly the complaint itself is not maintainable in view of the provisions under Section 141 of the Negotiable Instruments Act. Learned counsel submitted that even according to the averments in the complaint, materials were supplied to the partnership firm and not to the individual. Hence, he submitted that the partnership firm and all the partners, who were responsible for conducting the day-to-day business of the firm ought to have been arrayed as party to the said complaint which is not done in this case. Learned counsel further made the submission that looking to the cause title the respondent Mr. Kedarnath Jajee has been arrayed as party in his individual capacity. Firm is not made as party. Hence, it is first and foremost contention of the learned counsel for the respondent/accused that under Section 141 of Negotiable Instruments Act, the complaint itself is not maintainable. The another submission made by the learned counsel appearing for the respondent/accused is that the notice prior to filing of the complainant was also not served on the respondent/accused in this case. Therefore, there is no compliance of the requirements of Section 138 as well as Section 142 of Negotiable Instruments Act. The another submission made by the learned counsel appearing for the respondent/accused is that the notice prior to filing of the complainant was also not served on the respondent/accused in this case. Therefore, there is no compliance of the requirements of Section 138 as well as Section 142 of Negotiable Instruments Act. Learned counsel further made the submission that when there are two firms, admittedly according to the pleadings and evidence of the respondent/accused herein to which firm the goods were supplied and which firm was due to make payment. There is no cogent and acceptable evidence placed on record by the complainant before the trial Court. On these grounds the learned counsel for the respondent/accused submitted that the dismissal of the complaint and acquitting the respondent/accused is justified and no illegality has been committed in the matter, nor there was any perverse, capricious view was taken. Hence, submitted that there is no merit in the appeal and the same is to be dismissed. In support of his contention the learned counsel for the respondent/accused also relied upon the following decisions: (1) 2012 (1) DCR 746 Supreme Court of India; (2) Judgment rendered by the High Court of Karnataka, Principal Bench at Bengaluru dated 14.09.2012 passed in Crl. A. 133/2012 (A); (3) 2014 (1) DCR 686 ANDHRA PRADESH HIGH COURT; (4) 2015 CRL.L.J. 4764 (SUPREME COURT); (5) AIR 2015 (SUPREME COURT) 2795; (6) Judgment of the HIGH COURT OF KERALA dated 12.07.2013 rendered in Crl. Rev. Petition No. 3523/2010. 6. I have perused the averments made in the appeal memorandum and the grounds taken in the appeal memo, so also I have perused the judgment and order of the acquittal passed by the trial Court and the oral evidence adduced by the parties before the trial Court on both the sides, so also the documents produced in the case. The first and foremost contention raised by the respondent/accused in this case is with regard to the legal aspect and the maintainability of the very complaint before the trial Court as per Section 141 of Negotiable Instruments Act. 7. I have perused the evidence of the complainant examined-in-chief by way of affidavit. The first and foremost contention raised by the respondent/accused in this case is with regard to the legal aspect and the maintainability of the very complaint before the trial Court as per Section 141 of Negotiable Instruments Act. 7. I have perused the evidence of the complainant examined-in-chief by way of affidavit. In Para No. 4 of the said affidavit it is contended that lastly the accused has issued a cheque dated 15.07.2003 as a partner of the firm M/s. Jajee Pesticides drawn on the Bank of Gulbarga for a sum of Rs. 1,82,430/- bearing No. 092515 in favour of the complainant promising the complainant and the same will be honoured on its presentation. This averment made in the affidavit clearly goes to show that the said cheque has been issued by the respondent/accused not in his individual capacity, but as a partner of a firm M/s. Jajee Pesticides. So also I have perused Ex. P1 cheque dated 15.07.2003 for a amount of Rs. 1,82,430/-. Looking to the drawer of the said cheque it is mentioned as partner wherein the respondent/accused has signed the said cheque. These materials produced in the case clearly goes to show that the cheque issued in this case is not in the individual capacity, but representing the partnership firm. When that is so, the complainant ought to have arrayed the partnership firm as well as partners who are responsible for the conduct of the day-to-day business of the said partnership firm. But admittedly firm is not made as a party in this case. Looking to the principles stated in the decisions relied upon by the learned counsel for the respondent/accused it clearly goes to show that, in the absence of arraying the company or the firm, the complaint filed against the Directors or the partners only as not maintainable in law. I have also perused the oral evidence adduced in the case. The defence side evidence by DW1 wherein it is stated that he is the Managing Partner of M/s. Jajee Pesticides, Gulbarga and the partnership firm came to be formed in pursuance of the partnership deed on 01.04.1992 between himself and Mrs. Lalitha A. Jajee. This goes to show that there was one more partner of the firm who is one Lalitha Jajee who is also not made as party in this proceedings. Lalitha A. Jajee. This goes to show that there was one more partner of the firm who is one Lalitha Jajee who is also not made as party in this proceedings. Looking to the cross-examination of PW1 it is mentioned at Para 10 that "it is true to suggest that the seal appears in the invoice No. 0118 dated 05.10.2007 appears the seal as A.K. Jajee" and it is marked as Ex. D1. It is true to suggest that M/s. A.K. Jajee is not accused firm. It is true to say that the goods mentioned in Ex. D. 2 are delivered to M/s. A.K. Jajee Firm. So this evidence in the cross-examination of DW1 goes to show that out of two firms i.e. A.K. Jajee and another One M/s. Jajee Pesticides and looking to the document Ex. D2 goods are supplied to A.K. Jajee firm. But looking to the complaint and proceedings initialed in this case M/s. A.K. Jajee firm is not an accused in this case and the person who is arrayed as one of the partner of M/s. Jajee Pesticides and even according to PW1s cross-examination that no goods are supplied to Jajee Pesticides. Considering these aspects of the matter even on the factual side also the complainant has not established that there was due of the cheque amount Ex. P1 by M/s. Jajee Pesticides. Looking to these materials placed on record and looking to the judgment and order of acquittal passed by the trial Court the trial Court extensively considered each and every aspects of the matter and ultimately rightly come to the conclusion that the complainant has failed to establish the alleged offences and it was also held that under Section 141 of Negotiable Instruments Act, the complaint is not maintainable. Perusing these materials on record I am of the opinion that the trial Court is justified in acquitting the accused by dismissing the complaint. No illegality has been committed nor there was any perverse or capricious view taken by the trial Court in acquitting the accused. There is no merit in this appeal and accordingly the same is hereby dismissed and the judgment and order of the acquittal passed by the trial Court is hereby confirmed.