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2018 DIGILAW 727 (HP)

Gurdas v. Het Ram

2018-04-24

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present criminal appeal, under Section 378 of the Code of Criminal Procedure, has been maintained by the appellant/complainant (hereinafter to be called as “the complainant”), against the judgment of acquittal, dated 14.08.2006, passed by learned Chief Judicial Magistrate, Kullu, District Kullu, H.P., in Complaint No. 279-1/2001, under Section 138 of the Negotiable Instruments Act (hereinafter to be called as “N.I. Act”) 2. The key facts, giving rise to the present appeal are that the complainant filed a complaint against the respondent/accused (hereinafter to be called as “the accused”) under Section 138 of the N.I. Act and alleged that he was the agent of M/s Arjun Kumar Dhanna Ram, Fruit Commission Agents, Azadpur, New Delhi and was dealing in fruits business and the accused was the fruit contractor, who used to take the orchards of various persons on contract basis and used to sell the fruits through different fruits commission agents including the firm of the complainant. The complainant being the agent of the aforesaid firm used to give money in advance to different fruit contractors and the accused also used to take advances from the complainant on different occasions. Though, the said accounts used to be settled all the time, however, the accused failed to adjust the advance of Rs. 5,50,000/- taken by the complainant and in order to discharge his liability, he issued a cheque of Rs. 5,50,000/- bearing cheque No. 378402, dated 25.09.2001 in favour of the complainant drawn at Uco Bank, Manali Branch, being the proprietor of the Shobha Apples Garden. However, when the complainant presented the said cheque for encashment through his banker Uco Bank, Raison, the cheque was dishonoured, vide memo, dated 06.10.2001, on the ground that the account has already been closed by the accused. After receiving intimation vide memo, dated 16.10.2001, the complainant served a registered notice, dated 20.05.2001 upon the accused, which was received by him on 25.10.2001, intimating the accused qua dishonouring of the cheque and asked him to make the aforesaid payment within 15 days from the receipt of the said notice. However, despite aforesaid notice, the accused did not make the payment within 15 days, which lead the complainant to file a complaint against the accused, under Section 138 of the N.I. Act. 3. In order to prove its case, the complainant has examined as many as two witnesses. However, despite aforesaid notice, the accused did not make the payment within 15 days, which lead the complainant to file a complaint against the accused, under Section 138 of the N.I. Act. 3. In order to prove its case, the complainant has examined as many as two witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he pleaded his innocence and denied that he had issued the cheque in question, in favour of the complainant. Initially, the accused intended to lead defence evidence, however later on, no defence evidence was intended to be given by the accused. The learned trial Court, vide its judgment, dated 14.08.2006, acquitted the accused for the commission of offence punishable under Section 138 of the N.I. Act. Hence the present appeal. 4. I have heard the learned counsel for the parties and gone through the record carefully. 5. Mr. Vivek Singh Thakur, learned counsel for the appellant has argued that the judgment of acquittal, passed by the learned trial Court, is without appreciating the facts that the issuance of cheque has been admitted and in these circumstances, the presumption will go to show that it was issued for the consideration. In support of his arguments, learned counsel for the appellant has placed reliance upon the decision of Hon’ble Supreme Court, rendered in Sheoratan Agarwal and Another vs. State of Madhya Pradesh, (1984) 4 SCC 352 and the decision rendered by a coordinate Bench of this Court in Satinder Kapur vs. V.K. Sehgal, (1999) 3 SLC 216. On the other hand, Mr. Arjun Lal, learned counsel for the respondent has argued that there is nothing on record to show that cheque was issued to the complainant, as the dealings were being done by the complainant on behalf of the firm and no statement of accounts of the firm has been produced on record, and, therefore, well reasoned judgment of acquittal, passed by the learned trial Court, needs no interference. In support of his arguments, learned counsel for the respondent has placed reliance upon the decisions of Hon’ble Supreme Court, rendered in M.S. Narayana Menon alias Mani vs. State of Kerela and Another, (2006) 6 SCC 39 , Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008) 4, SCC 54 and Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 . In support of his arguments, learned counsel for the respondent has placed reliance upon the decisions of Hon’ble Supreme Court, rendered in M.S. Narayana Menon alias Mani vs. State of Kerela and Another, (2006) 6 SCC 39 , Krishna Janardhan Bhat vs. Dattatraya G. Hegde, (2008) 4, SCC 54 and Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 . In rebuttal, learned counsel for the appellant has argued that the cheque was issued for the consideration and, therefore, the amount was payable and in view of this fact, the judgment of acquittal, passed by the learned trial court deserves to be set aside and present appeal may be allowed, by directing the respondent to pay the cheque amount alongwith up-to-date interest. 6. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 7. Complainant Gurdas, appeared in the witness box as CW-1 and deposed that he was working for M/s Arjun Kumar, Dhanna Ram Fruit Commission Agents, Azadpur, New Delhi and the accused was a fruit contractor, who used to take orchards of the people on contract and used to sell fruits through various fruits commission agents, including him. He has further deposed that the accused used to take advance on different occasions, which was being adjusted in the fruits, however at the time of clearance of the accounts, it was found that Rs. 5,50,000/- were due from the accused. As per the complainant, in order to discharge his liability, the accused has issued a cheque, bearing No. 378402, dated 25.09.2001, amounting to Rs. 5,50,000/- to him and when the said cheque was presented by him in the bank, the same was dishonoured, vide memo, dated 06.10.2001 on the ground that the account is closed. Thereafter, he issued a notice to the accused and filed the present complaint within the stipulated time. 8. CW-2, Shyam Lal Sharma, has deposed that he is a Clerk, at Uco Bank Branch Raison. He further deposed that the cheque, Ext. P-1 was received for collection, which was sent to Uco Bank Branch at Manali, wherefrom the said cheque was returned with memo, Ext. CW-2/A to their bank at Raison, which was sent to the complainant, vide memo, Ext. CW-2/B. He deposed that in memo, Ext. CW-2/A, it was written that the account has been closed, so the cheque is returned. 9. CW-2/A to their bank at Raison, which was sent to the complainant, vide memo, Ext. CW-2/B. He deposed that in memo, Ext. CW-2/A, it was written that the account has been closed, so the cheque is returned. 9. CW-2, Naranjan Thapa, has deposed that he is Special Assistant at Uco Bank, Manali and the cheque, Ext. P-1 was received from Uco Bank, Raison for collection, however the same could not be encashed, as the accused has closed his account, so the cheque was returned with memo, Ext. CW-2/A to Uco Bank, Raison. He produced on record the statement of accounts of the accused, Ext. CW- 3/A and stated that there was no money in the account of the accused, therefore in memo, Ext. CW-2/A, we have mentioned “account closed”. 10. Complainant was re-examined by the Court on 08.12.2005 and he deposed that he is commission agent and knows the accused, as he is in his business. He further deposed that the accused was taking contracts of orchards and used to take money from him as and when needed. He has deposed that the accused though taken the advance, but not sent the fruits to that extent and when the accounts were matched, Rs. 5,50,000/- were found recoverable from the accused. He produced on record vouchers, Ext. C-1 to C-16. He deposed that when the accused issued the cheque, he knew that there is no money in his account. In his cross-examination, he admitted that Ext. D-1 is of his firm and the name of the proprietor is Moti Ram, but stated that vouchers were being signed by the accused. He has deposed that the payment, he has shown due from the accused, were not signed by the accused. He has further deposed that from the firm advance was given to the accused, was owned by Arjun Kumar, but stated that the money was to be returned to him. He has deposed that the payment, shown to be given to the accused, has not been given by me, but the same was given by Arjun Kumar. He has further deposed that he could not produce the challan, with which the accused has sent apples to them. He denied that the accused is not liable to pay any amount to him. 11. He has further deposed that he could not produce the challan, with which the accused has sent apples to them. He denied that the accused is not liable to pay any amount to him. 11. It appears from the record that the Bank has returned the cheque only on the ground that the account is closed, but there is nothing mentioned by the Bank whether the signatures are correct or not and whether the signatures are of the accused or not. The complainant has established that the cheque Ext. P-1 was presented by him in the bank and it was dishonoured, vide memo, Ext. CW-2/A, with the report “account closed” and thereafter the complainant served the notice upon the accused, wherein he asked the accused to make payment or Rs. 5,50,000/- within 15 days from the receipt of the said notice, however despite said notice, the accused did not make the payment. The complainant has admitted that the cheque was issued by the accused being the proprietor of M/s Shobha Apples Garden, therefore, the offence, if any, has been committed, has been committed by the firm, not by the accused in his personal capacity, which is also evident from the statement of account of the accused, Ext. CW-3/A. The cheque, Ext. P-1, as well as the statement of accounts, Ext. CW-3/A pertaining to the account of Shobha Apples Garden and in the title of the complaint, the complainant has not mentioned accused as proprietor of M/s Shobha Apples Garden. The evidence produced by the complainant, shows that the cheque was issued by the firm in favour of the complainant, no doubt, the firm being a legal identity has to do its business through its proprietor, however so far as liability under Section 138 of the N.I. Act is concerned, the accused is not liable to pay the money in individual capacity. 12. At this stage, it is apt to mention Section 141 of the Negotiable Instruments Act, which reads as under: “141. 12. At this stage, it is apt to mention Section 141 of the Negotiable Instruments Act, which reads as under: “141. Offences by companies-(1) If the person committing an offence under Section 138 is a company, every person who, at the time of the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this chapter. (2) Notwithstanding anything contained in subsection (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance or, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. The explanation for the purpose of this Section,- (a) “company” means anybody corporate and includes a firm or other association of individuals, and (b) “director”, in relation to a firm, means a partner in the firm.” 13. Section 141 clearly provides that every person, who at the time of offence was committed, was in charge or responsible of the firm for the conduct of the business of the firm, as well as the firm, shall be guilty for having committed the offence. Accordingly, to establish that the accused was the proprietor of M/s Shobha Apples Garden and was responsible being in charge of the business of firm, when the cheuqe in question was issued, no evidence has been produce by the complainant. Accordingly, to establish that the accused was the proprietor of M/s Shobha Apples Garden and was responsible being in charge of the business of firm, when the cheuqe in question was issued, no evidence has been produce by the complainant. The statutory notice, as required under Section 138 of the N.I. Act should have been issued to M/s Shobha Apples Garden through its proprietor, however the notice was issued to the accused in his individual capacity. 14. A coordinate Bench of this Hon’ble High Court in Vijay Kumar Dange vs. Saroj Thakur and another case, has relied upon the decision rendered by this Hon’ble High Court in Kuldeep Thakur vs. M/s Mohar Mahesh Construction Pvt. Ltd., Kullu through its Managing Director 2012 (2) SLC 854, which reads as under: “10. The complaint filed is only against the company through its Managing Director, Shri Mohan Singh Thakur clearly stated before the Court that he was only Director not the Managing Director of the company. Although in his statement under Section 313 of the Code of Criminal Procedure he admitted having signed the cheque but neither he has been impleaded as an accused nor statutory notice of demand was sent to him. The notice is only addressed in the name of the proprietor not even in the name of the Managing Director. Without making any allegation against any of the Directors or so to say there is even no mention in the complaint as to who had issued and signed the cheque. The proceedings against Mohar Singh were not maintainable and there is no allegation that he was in charge of and responsible to the company for the conduct of its business”. 15. This Court after going through the judgments cited by the learned counsel for the respondent (supra) and the decision rendered by a Coordinate Bench of this Court in Vijay Kumar Dange vs. Saroj Thakur and another case, finds that the complainant has failed to bring home the guilt of the accused, under Section 138 of the N.I. Act and the complaint filed against the accused in his individual capacity is not maintainable. As far as the judgments relied upon by the learned counsel for the appellant, are not applicable to the facts of the present case, as the same deals with the Essential Commodities Act, 1955. 16. As far as the judgments relied upon by the learned counsel for the appellant, are not applicable to the facts of the present case, as the same deals with the Essential Commodities Act, 1955. 16. In view of the discussion made hereinabove, the present appeal, sans merit, deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stands disposed of.