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2016 DIGILAW 253 (RAJ)

Kan Singh v. Vane Chand Satish Kumar

2016-02-15

SANDEEP MEHTA

body2016
ORDER : Sandeep Mehta, J. 1. The instant application for leave to appeal has been filed by the applicant complainant Kan Singh seeking leave of appeal against the judgment dated 26.3.2010 passed by the learned Additional Sessions Judge, Pali Camp Sumerpur, District Pali in Cr. Appeal No. 48/2008 whereby the appellate court accepted the appeal filed by the respondents accused and set aside their conviction for the offence under Section 138 of the N.I. Act as recorded by the learned Judicial Magistrate First Class, Sumerpur in Cr. Case No. 1142/2003 vide judgment dated 21.11.2008. The learned trial Judge convicted the respondents for the above offence and sentenced them to suffer six months' simple imprisonment each and also directed them to make payment of Rs.10,000/- each to the applicant complainant by way of compensation. The appeal preferred by the accused respondents against the judgment of conviction was accepted and they were acquitted as mentioned above. Hence, this application for leave to appeal. 2. Shri Rajesh Parihar, learned counsel for the applicant contends that the learned appellate court acted in an absolutely conjectural fashion while accepting the appeal filed by the respondents. As per him, the fact that the respondent firm was under a legally enforceable debt to the applicant is admitted. All the necessary legal requirements for bringing home the charge under Section 138 of the N.I. Act are well proved against the respondents. Thus, as per him, the judgment of acquittal passed by the appellate court is absolutely illegal as the judgment of conviction passed by the learned trial Court was based on just and proper appreciation of the material available on record and could not have been interfered with. He, therefore, submits that it is a fit case for granting leave to the applicant complainant for filing an appeal against the impugned judgment. 3. Per contra, Shri JVS Deora, learned counsel for the respondents vehemently opposes the submissions advanced by the learned counsel for the applicant. He submits that the applicant failed to prove that the respondents Smt. Vimla Devi and Rajkumar were responsible to clear off the liabilities of the firm Vane Chand Satish Kumar. The cheque does not bear the signatures of either Smt. Vimla Devi or Rajkumar. The firm was not impleaded as party in the complaint. He submits that the applicant failed to prove that the respondents Smt. Vimla Devi and Rajkumar were responsible to clear off the liabilities of the firm Vane Chand Satish Kumar. The cheque does not bear the signatures of either Smt. Vimla Devi or Rajkumar. The firm was not impleaded as party in the complaint. Thus, as per him, the trial Court was absolutely unjustified in convicting the respondents for the offence under Section 138 of the N.I. Act and that the judgment of acquittal recorded by the learned appellate court is perfectly just and proper and does not require any interference. 4. I have heard the arguments advanced by the learned counsel representing the parties and have gone through the impugned judgment. 5. The first and the foremost shortcoming in the case of complainant applicant is that Smt. Vimla Devi was impleaded as an accused in the complaint as being the owner of the firm whereas, Rajkumar @ Raju was impleaded as a Manager of the firm. The firm was not separately impleaded as a party in the complaint. Since, Smt. Vimla Devi was prosecuted in the capacity of the representative of the firm, then the sentence of imprisonment could not have been passed against her. Viewed in light of the ratio of the judgment rendered by the Hon'ble Supreme Court in the case of Aneeta Hada v. M/s. Godfather Travels and Tours, reported in (2012) 5 SCC 661 , failure to implead the firm as an accused in the complaint is fatal to the prosecution. That apart, the appellate court after appreciation of evidence came to the conclusion that the applicant could not lead any evidence to show that the respondent accused Rajkumar had been authorised to conduct day to day affairs of the firm. The evidence available on record indicated that the firm had authorised Satish Kumar and Kalpesh by a power of attorney to conduct its day to day affairs. The complainant came out with a case that the cheque was signed by Rajkumar @ Raju whereas, the bank records disclosed that the authorised signatories of the firm are Vimla Devi, Satish Kumar and Kalpesh. Thus, as the cheque was allegedly signed by Rajkumar @ Raju, who was not an authorised representative of the firm, his prosecution under Section 138 of the N.I. Act was misconceived. Thus, as the cheque was allegedly signed by Rajkumar @ Raju, who was not an authorised representative of the firm, his prosecution under Section 138 of the N.I. Act was misconceived. The cheque returning memo discloses that the signatures existing on the cheque were differing from the account holder's signatures. A complaint had been lodged on behalf of the firm regarding loss of their cheque-book. The appellate court observed that if at all, the complainant bore a grievance that Rajkumar fraudulently issued a cheque on behalf of the firm without having authority to do so, then he should have been prosecuted under Section 420 IPC. 6. In view of the above facts, this Court is of the opinion that the appellate court was perfectly justified in setting aside the conviction of the respondents as recorded by the trial Court for the offence under Section 138 of the N.I. Act. No reasonable and justifiable grounds exist to grant leave to the applicant complainant for filing an appeal against the impugned judgment of acquittal. 7. The leave to appeal application is thus rejected as being devoid of any merit.