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2018 DIGILAW 735 (KAR)

Shah Agencies v. Gul Mohar Enterprises

2018-06-25

K.N.PHANEENDRA

body2018
ORDER : K.N. Phaneendra, J. 1. This Revision Petition is preferred challenging the order passed by the learned 14th ACMM, Bengaluru, in CC No. 26684/2000, wherein the learned Judge has convicted the accused/petitioner u/s. 138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs. 11,80,000/- and in default to undergo simple imprisonment for two years and awarding compensation of Rs. 11,60,000/- out of the fine amount in favour of the complainant and also the judgment passed in Criminal Appeal No. 15045/2006 by the FTC-III/Addl. Sessions Judge, Mayohall Unit, Bengaluru dated 18.12.2009 wherein the appellate court has confirmed the judgment of conviction of the trial Court, modified and reduced the sentence to the tune of Rs. 8,10,000/- and to undergo simple imprisonment for six months and awarding of compensation of Rs. 8 lakhs to the complainant out of the fine amount. 2. The factual aspects of this case reveal that, the complainant (Respondent herein) filed a complaint against the accused (Revision petitioner) herein u/s. 200 of Cr.P.C. for the offence punishable under section 138 of Negotiable Instruments Act. The complainant is a Partnership Firm and doing business in the name and style of Gulmohar Enterprises. The accused No. 1 is running a business in supply of Pharmaceutical chemicals. The accused was known to the complainant and requested for financial help by way of hand loan in the month of February, 1996 and on the premise that the accused would repay the said loan within one year. Accordingly, a total amount of Rs. 13,50,000/- was paid to the accused by way of different DDs. The accused had made the repayment in respect of some amount and in discharge of the remaining amount, he has issued a cheque in No. 500908 dated 15.5.1998 for Rs. 6,85,960/- drawn on AP M. Co-operative Bank Ltd., Secunderabad. On presentation of the said cheque, it was bounced on 8.10.1998 on the ground of 'insufficient funds'. On the request of the complainant, the said cheque was once again represented on 2.11.1998, but again it was bounced on the same ground on 10.11.1998. The complainant issued notice on 16.11.1998 and the same was served on the accused and he has issued a untenable reply and as such a complaint came to be filed u/s. 138 of the Negotiable Instruments Act. 3. The complainant issued notice on 16.11.1998 and the same was served on the accused and he has issued a untenable reply and as such a complaint came to be filed u/s. 138 of the Negotiable Instruments Act. 3. I have heard the arguments of the learned counsel for the petitioner and also the respondent and I have carefully perused the entire materials on record including the judgment of the trial Court and the appellate court. 4. Though this court exercising powers under section 397 and 401 of Cr.P.C. has very limited power to interfere with the judgment of the trial Court and the appellate court, however, there is no bar under any law for the time being in force that, the revisional court cannot interfere with the judgment of the trial Court and the appellate court. It all depends upon the legal questions raised in the particular case and facts and circumstances of each case. However, bearing in mind that the scope of Revision is very limited and normally the court should not interfere with the factual appreciation by the trial Court and the appellate court and findings thereon. If the court comes to the conclusion that the facts have not been properly appreciated and the same amounts to miscarriage of justice or any legal points raised have not been properly considered, then only the revisional court can exercise their power to interfere with the orders of the trial Court or the appellate court. Bearing in mind the above said principles, now let me consider this particular petition. 5. Though the learned counsel for the petitioner has raised many number of grounds with regard to the documentary evidence placed before the court and on facts, but he raised three important points before this court. (1) The partners of the firm of Accused No. 1 though it is unregistered, all the accused have not been made as parties to the proceedings and therefore, the complaint itself is not maintainable against an unregistered Partnership Firm without its partners. (2) There is no notice properly issued to Accused or to any of the partners or to the Partnership Firm as contemplated u/s. 138 of the Negotiable Instruments Act. Therefore, the complaint itself is not maintainable without proper compliance of notice u/s. 138 of Negotiable Instruments Act. 6. (2) There is no notice properly issued to Accused or to any of the partners or to the Partnership Firm as contemplated u/s. 138 of the Negotiable Instruments Act. Therefore, the complaint itself is not maintainable without proper compliance of notice u/s. 138 of Negotiable Instruments Act. 6. Lastly, without admitting, the learned counsel contended that during the course of the trial, it is an admitted that an amount of Rs. 6 lakh has already been paid and acknowledged by the complainant. Power of Attorney Holder of the accused Partnership Firm is neither a partner nor an authorized officer of the Partnership Firm to represent the Partnership Firm. Therefore, the learned counsel also contended that though the entire amount has repaid, the trial Court and appellate court have not properly appreciated the oral and documentary evidence on record and erroneously convicted the accused/petitioner awarding the above said amount as find and also awarding compensation to the complainant which is erroneous in law. 7. Per contra, the learned counsel for the respondent strenuously contended before this court that all the requirements u/s. 138 of the Negotiable Instruments Act has been complied. Petitioner is an authorized Power of Attorney holder of the Partnership Firm and it is admitted that an amount of Rs. 6 lakhs has been received by the complainant and giving deduction to the said amount, the Appellate Court has rightly modified the judgment of the trial Court. Therefore, there is absolutely no room to interfere with the judgment of conviction and sentence passed by the trial Court and as modified by the appellate court. Hence, she pleaded for dismissal of the Revision Petition. 8. On careful perusal of the entire materials on record, of course, the partners of the accused Company M/s. Shah Agencies, have not been made as parties. But it is specifically pleaded and proved that, the entire Partnership Firm including its partners have executed Power of Attorney in favour of the petitioner and the petitioner for all practical purposes acted as a representative of the said unregistered Partnership Firm. Of course, this particular point was nowhere raised by the petitioner either before the trial Court or the appellate court. But only ground taken up by the trial Court and the appellate court is that the accused is an unregistered Partnership Firm, therefore, the complaint is not maintainable against the unregistered Partnership Firm. Of course, this particular point was nowhere raised by the petitioner either before the trial Court or the appellate court. But only ground taken up by the trial Court and the appellate court is that the accused is an unregistered Partnership Firm, therefore, the complaint is not maintainable against the unregistered Partnership Firm. This point has been answered by the trial Court by relying upon the decisions of this court reported in (1) ILR 2003 KAR 4325 between M/s. Beccon Industries, Represented by its partner, Bengaluru Vs. Anupam Ghosh; and (2) 2004 (1) KLJ 421 between Bhavani Agencies Vs. G.C. Colour Lab, wherein the trial Court has made an observation that the complaint filed by the partner of an unregistered firm though Partnership Firm is not registered, the complaint is maintainable. The provisions of Partnership Act is not attracted so far as criminal proceedings are concerned. Therefore, the court has held that the complaint is maintainable. 9. So far as the issuance of Power of Attorney by the accused Partnership Firm in favour of the petitioner being the Power of Attorney holder is not in dispute. It is the document which is produced before the court discloses that Ex. P1 is the Partnership Deed and the accused has not at all denied that he is not the Power of Attorney holder of the said firm. On the other hand, notice issued to him styling him as Power of Attorney holder of the accused Partnership Firm, has been received by him and in fact, he has given reply admitting the transaction but taking up a contention that he has repaid the entire amount issued. Reply notice to the legal notice issued by the complainant, and the said legal notice is marked at Ex. P-8 and Reply given by the accused and further reply given by the accused have been marked at Ex. P-9 and P-11A. Ex. P-12 is the further reply given by the complainant. Therefore, it goes without saying that at no point of time, the petitioner has denied that he is not the Power of Attorney holder of the accused Partnership Firm. On the other hand, the tenor of reply given and the defence taken up by the accused before the court clearly discloses that he has taken up the contention that he has received an amount of Rs. On the other hand, the tenor of reply given and the defence taken up by the accused before the court clearly discloses that he has taken up the contention that he has received an amount of Rs. 13,50,000/- for starting Modern Chemical Industries, but not as a hand loan and also taken up the contention that, he has repaid the entire amount to the complainant. In the above said circumstances, when he has admitted that he is the Power of Attorney holder of the Partnership Firm, then it goes without saying that he not only represents the Partnership Firm but also represents the partners. Therefore, it is deemed that once the Partnership Firm is made as a party, represented through its Power of Attorney holder, which is in-turn authorized by the partners of the firm, all the legal requirements can be said to have been fulfilled and there cannot be any legal impediment to the Power of Attorney holder to represent the Partnership Firm. Therefore, the said ground taken up by the learned counsel is not tenable. 10. The above said factual aspects are also equally applicable in order to resolve Point No. (2) raised by the learned counsel with regard to the issuance of notice to the accused petitioner. It is seen from the records that Ex. P-8 is the legal notice which is served on the petitioner and in the said notice, the same was addressed to the petitioner on behalf of M/s. Shah Agencies, which has been received and replied as per Ex. P-11 in which the present petitioner has signed his signature for Shah Agencies even Ex. P-12 also discloses that another reply was given to the petitioner and the same has also been received by the petitioner. Even during the course of evidence and in the complaint also it is specifically mentioned that the petitioner is the Power of Attorney holder of Shah Agencies and he has taken the money on hand loan a sum of Rs. 13,74,084/- and the same has not been repaid and for repayment of the said amount, the said disputed cheques have been issued. These particular facts have not been denied nowhere during the course of cross examination. 13,74,084/- and the same has not been repaid and for repayment of the said amount, the said disputed cheques have been issued. These particular facts have not been denied nowhere during the course of cross examination. Even PW-1 in his evidence also stated that Accused No. 1 is a business agency and Accused No. 2 has requested for financial help by way of hand loan for the business of Accused No. 1. This aspect has not been denied by the other side. During the course of cross examination, it is suggested that M/s. Shan Enterprises and Agency has been run by the accused/petitioner. Even in the examination in chief of the petitioner before the trial Court he never made any attempt to deny the said aspect. On the other hand, he has admitted the same. Therefore, for all practical purposes as I have already narrated, he stepped into the shoes of Accused No. 1 i.e., the Shah Agencies, which is a Partnership Firm. Therefore, when the transaction has been taken place admittedly between the complainant and Accused No. 2, as a Power of Attorney Holder of Accused No. 1 and it is within the knowledge of Accused No. 2 that he represent Accused No. 1, therefore, the notice issued to Accused No. 2 is deemed to have been issued to Accused No. 1 and in turn to the partners of Accused No. 1. On the other hand, there is no dispute so far as this aspect is concerned, from the partners. Therefore, the said ground is also not available to the accused/petitioner herein. And when such ground is not tenable and on that ground, the judgment of the trial Court and the appellate court cannot be interfered. Both the courts have categorically held appreciating the oral and documentary evidence on record that the petitioner represented himself throughout admitting the fact that he is the Power of Attorney holder of Accused No. 1. 11. Last, but not least, it is the defence of the accused that though he has taken the money of Rs. 13,50,000/- but not as a hand loan, but for the purpose of starting Modern Chemical Industries. The accused/petitioner admitted the receipt of an amount of Rs. 13,50,000/- from the complainant. 11. Last, but not least, it is the defence of the accused that though he has taken the money of Rs. 13,50,000/- but not as a hand loan, but for the purpose of starting Modern Chemical Industries. The accused/petitioner admitted the receipt of an amount of Rs. 13,50,000/- from the complainant. Whether it is by way of loan or for the purpose of starting of an Industry, it makes no difference, but the fact remains that the accused has received the said sum from the complainant. He also admitted in his evidence with regard to issuance of the cheques which are in dispute in this particular case. 12. On the other hand, he has taken up the plea that he has paid the entire amount to the complainant. His contention is that he has paid some of the amount to the son of the complainant under various documents stating that the son of the complainant is one of the partners of Modern Chemical Industries. Therefore, it is deemed that the said amount was paid to the son of the complainant to be payable to the complainant firm. If that amount is not been paid by the son of the complainant, then the complainant has to recover the said amount from the son of the complainant. 13. The trial Court and the appellate court in fact in detail considered these aspects with reference to the documents particularly the trial Court at paragraph 4 and the appellate court at paragraph 14 and 15, discussing at length have come to the conclusion that the said cheques were issued by the accused for repayment of the liability under-taken by him and payments made by the accused have been in detail considered with reference to the documents and on that appellate court came to the conclusion that some amounts have been paid to the complainant and the amounts which are claimed to have been paid to the son of the complainant cannot be taken into consideration as payment to the complainant - Firm is concerned. Even the courts have recorded that the accused have admitted that there is no relationship between the son of PW-1 and the complainant Firm. The son of PW-1 is not a partner of the complainant - Firm. Even the courts have recorded that the accused have admitted that there is no relationship between the son of PW-1 and the complainant Firm. The son of PW-1 is not a partner of the complainant - Firm. When such being the case, if any amount even said to have been paid by the accused to the son of PW-1 to be payable to the complainant - Firm, even if such amount is not paid to the complainant firm, if it is not paid, the accused has to work out his remedy against the son of PW-1. But he cannot claim set off, of that amount against the complainant - Firm. On which dates, the accused has paid this amount and how much he has paid to the complainant - Firm, everything has been in detail considered exhibit-wise by the appellate court and it has come to the conclusion that the petitioner is still liable to pay the cheque amount and therefore, modified the order of the learned Magistrate to that extent and sentenced the petitioner to pay a fine of Rs. 8,10,000/- and awarded Rs. 8,00,000/- as compensation to the complainant and also awarded simple imprisonment for six months and in default of making payment of Rs. 8,00,000/-, Rs. 10,000/- fine has been imposed. Therefore, under the above said circumstances, I do not find any strong reasons to interfere with the judgment of the appellate court which confirmed the judgment of conviction and sentence, by modifying the sentence virtually in favour of the accused/petitioner. Hence, the Revision Petition is devoid of merit and the same is liable to be dismissed. Accordingly, dismissed.