Bangalore District Court
M/S Sara Apparels vs M/S Vaiking Fashions on 19 September, 2015
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 19th day of September, 2015
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRIMINAL REVISION PETITION No.690/2015
PETITIONER: 1. M/s Sara Apparels,
Partnership Firm
Dealers of Readymade Garments,
Marketing office at
Old address: No.1/24, 1st Floor,
Ayyappa Garden,
Bengaluru - 560 030.
2. Anser Ali S/o Hamza,
Aged about 31 years,
Residing at Kallinagal House,
Near Crescent Hall,
Erangoth Parabha Arts College,
Meenachanda Calicut,
Now at Bengaluru.
Presently residing at
C/o Jinna Tom, S/o Tom Jose,
No.8-B, Chikkabelandur,
Carmalaram Post, Sarjapura Road,
Bengaluru - 560 035.
(By Sri.A.K.Mohan Krishnan,
Advocate)
-Versus-
2 Crl.R.P.690/2015
RESPONDENT: M/s Vaiking Fashions
Represented by its Proprietor,
Mr.K.P.Moosa,
No.38/9, Bazaar Street,
Neelasandra,
Bengaluru - 560 047.
(By Sri.N.Savanur and Associates,
Advocates)
ORDER
This revision petition is filed by the petitioner under Sec.397 Cr.P.C. praying this court to set aside the order passed by the XIII Addl.Chief Metropolitan Magistrate Court, Bengaluru, in C.C.16862/2014 dated 30-07-2015 in respect of rejecting the application under Sec.319 of Cr.P.C.
2. It is the case of the revision petitioners that, respondent/complainant has filed complaint under Sec.200 of Cr.P.C. against them before XIII Addl.Chief Metropolitan Magistrate Court, Bengaluru for the offence under Sec.138 of Negotiable Instruments Act in PCR No.8711/2014 thereafter learned Magistrate has taken the cognizance and after sworn statements are registered, case is registered against them in C.C.16862/2014. It is the case of petitioners that 3 Crl.R.P.690/2015 complainant/respondent is his father in law. It is the case of petitioner that during the trial in C.c.16862/2014, he after careful reading the complaint averments came to know that respondent had deliberately and intentionally avoided to mention the name of other partner of the accused No.1-Firm i.e., his daughter Munseera who enjoyed the equal responsibilities in the business establishments of accused No.1-Firm. So he in order to bring the other partner i.e., his wife and daughter of complainant on record has filed application under Sec.319 of Cr.P.C. to implead his wife Munseera as proposed accused No.3 to fix on vicarious responsibilities of joint partner who is relating with the complainant and for the said application the complainant has filed objections and trial court after hearing both the sides rejected the said application on 30-07-2015.
3. The Revision Petitioner being aggrieved by the order passed by the trial court in rejecting his application filed under Sec.319 of Cr.P.C. came in revision on the following among other grounds;
4 Crl.R.P.690/2015 The order of the learned Magistrate is improper and the said order is not sustainable under law and liable to be set aside. The trial court has erred in applying its mind to the actual contentions taken in the application filed by him under Sec.319 of Cr.P.C. The trial court has wrongly observed that complainant has not narrated anything about the involvement of his daughter i.e., proposed accused No.3. The court has not looked into the contentions taken by him in the application filed under Sec.319 of Cr.P.C. and wrongly concluded that accused No.3 is not necessary party. The trial court erred in not understanding the fact that complainant by colluding with the proposed accused No.3 who is his daughter has misused the cheque which has been forcibly taken by the complainant. The trial court has erred in not taking into consideration that the cheque in question is signed by the petitioner and propsed accused No.3 and wrongly rejected the application. The trial court has not looked into the documentary evidence produced by him while passing the order under Sec.319 of Cr.P.C. The order passed by the trial 5 Crl.R.P.690/2015 court is contrary to law and liable to be set aside and petitioner has prayed for allowing the petition by setting aside the order under revision impleading the accused No.3 in the case as prayed in the application.
4. This revision petition is filed before the Hon'ble Prl. City Civil and Sessions Judge, Bengaluru and the same is numbered as Crl.R.P.690/2015 and made-over to this court for disposal. After receipt of the papers, this court has issued notice to the respondent and the respondent appeared through his counsel.
5. Heard the arguments advanced by the learned counsel for petitioners. Perused the written arguments filed by the counsel for the petitioners. Heard the arguments advanced by the learned counsel for the respondent in length.
6. The points that arise for my determination are:
1. Whether the Order passed by the trial court dated 30-07-2015 rejecting the application filed by the Revision Petitioner under Sec.319 of Cr.P.C. is contrary to law and liable to be interfered in this revision?
2. What order?
6 Crl.R.P.690/2015
7. My findings on the above points are as follows:
Point No.1 : In the Negative;
Point No.2 : As per final order
for the following :
REASONS
8. POINT No.1: It is the case of the petitioner that he is one of the partners of accused No.1-Firm and another partner of accused No.1-Firm is his wife Munseera. The alleged cheque on which the complaint is lodged by the complainant under Sec.138 of Negotiable Instruments Act is signed by him and proposed accused No.3. Accused No.3 was also taking part in the day to day business of the accused No.1-Firm and proposed accused No.3 who is his wife is also necessary party in this case. Complainant has not included the proposed accused No.3 in this case. The proposed accused No.3 is the daughter of complainant, his relationship with his wife is strained, his wife has filed Crl.Mis. and other cases against him, now his wife is residing with the complainant who is her father and complainant and proposed accused No.3 have colluded, so complainant has not
7 Crl.R.P.690/2015 impleaded his wife as accused No.3 in this case, so he has moved the application under Sec.319 of Cr.P.C. for including his wife as accused No.3 in this case and trial court without considering the documentary evidence placed by him has wrongfully came to the conclusion that his wife proposed accused No.3 is not necessary party and rejected his application. The said order is contrary to law and liable to be set aside and prayed for allowing the petition.
9. It is the case of respondent that Partnership Deed contended by the Revision petitioner is unregistered one, so in view of the provisions of Partnership Act, the unregistered Partnership Deed cannot be looked into for any purpose. Further the respondent has contended that, the proposed accused No.3 is a sleeping partner and she was not taking part in the day to day business of the accused No.1-Firm, so proposed accused No.3 is not necessary party. Revision petitioner himself has issued letter to the Manager of the Bank for stop payment and in the said letter petitioner has contended that he is the Managing Partner and the said fact 8 Crl.R.P.690/2015 clearly goes to show that proposed accused No.3 is not managing the affairs of accused No.1-Partnership Firm and she is the sleeping partner. The trial court after looking into the oral and documentary evidence placed before it and after verifying the citations produced by them has rightly concluded that proposed accused No.3 is not necessary party and rejected the application moved by the petitioner under Sec.319 of Cr.P.C. The order passed by the trial court is not contrary to law, so no interference is required in the order under revision and prayed for rejecting the application.
10. The learned counsel for the petitioner has placed his reliance on the copy of the cheque produced by him in this case and perusal of the same goes to show that both present petitioner and proposed accused No.3 have signed the said cheque and the same is not disputed by respondent also. Further petitioner has produced the accused No.1's Bank Accounts Statements. Perusal of the said statement goes to show that, three cheques have been issued by the proposed accused. The counsel for the respondent has contended that 9 Crl.R.P.690/2015 accused No.2 has left Bengaluru and went to his native place Kerala and accused No.3 was staying at Bengaluru and the landlord from whom the property was taken on rental basis were pressing the accused No.3 for rent, so she has issued the cheques for giving the rent and in that circumstance she has issued the said cheques and that itself will not go to show that proposed accused No.3 was taking part in the day to day affairs of the accused No.1-Firm and the said submission by counsel for the respondent is acceptable one.
11. Further the counsel for the accused has produced copy of Rent Agreement and wherein there is endorsement to the effect that accused No.3 has received advance amount after deducting rent and she has signed and for that also the counsel for the respondent has contended that as the accused No.1 has left Bengaluru and started staying at Kerala and Firm was not continued its business, so accused No.3 might have received the amount and vacated the property in order to pay rent unnecessarily and in the contention of counsel respondent there is some force and the said contention is 10 Crl.R.P.690/2015 acceptable one in he facts and circumstances of the case. The counsel for the respondent has relied upon citation reported in AIR 1981 Supreme Court 872 (Case: State of Karnataka Vs. pratap Chand and others), wherein the lordship of our own Apex Court have held as under;
"The Partner not in overall control of day to day business of Firm - He is not liable to be convicted for the offences."
12. Further the counsel for the respondent has relied upon citation reported in AIR 1983 Supreme Court 1982 (Case: Sham Sundar and others Vs. State of Haryana), wherein the lordship of Hon'ble Apex Court have held as under;
"Partner responsible for carrying on business and during relevant time incharge of business - Can only be convicted."
13. In the present case, the cheques issued by the proposed accused No.3 to the landlord is after the Firm has stopped its business. Further the advance amount received by the proposed accused No.3 is after the business was stopped. The petitioner has not produced any documentary 11 Crl.R.P.690/2015 evidence to show that during relevant period when cheque was issued, the proposed accused No.3 was taking part in the date to day affairs of the Firm.
14. Further the counsel for the respondent has relied upon the citation reported in 2009(1) Crimes 646 (Kar.) in (Case: Suresh Kallappa Makavi Vs. Madan Bindurao Desai and another), wherein the lordship of our Hon'ble High Court have held as under;
"Negotiable Instruments Act, 1881 - Section 138 and 142 - Dishonour of cheque drawn by Firm - Prosecution for Firm and its three partners - Complaint was got dropped against two partners i.e., accused No.2 and 4 - Conviction of petitioner by courts below - Revision - Cheque had been signed by accused No.2 partner and petitioner - Both signatories or any one of them could be prosecuted and thus prosecution of petitioner in absence of accused No.2 suffered no illegality."
15. In the present case in hand also it is the contention of the Revision Petitioner that his wife has also signed the alleged cheque, so she is the necessary party. The complainant has not added her as an accused in this case. It is the case of complainant that the accused No.3 is not 12 Crl.R.P.690/2015 managing the Firm and she was sleeping partner and in view of the principles laid down in the above cited ruling of our own Hon'ble High Court, it is clear that non-enclosure of another partner who has signed the cheque will not cause any illegality in the proceedings. Further the counsel for the petitioner has produced Memo with letter written by petitioner to the Manager of Dhanalakshmi Bank, JC Road Branch and wherein he has requested the Manager of the Bank to stop payment in respect of the cheque No.292652 and the petitioner has signed himself as Managing Partner and the said aspect clearly goes to show that petitioner has admitted that he is managing partner of the Firm. The trial court has considered all the aspects and rightly concluded that the proposed accused No.3 is not necessary party and rejected the application. Perusal of the order under revision clearly goes to show that the trial court has looked into the materials placed before her and rightly rejected the application moved by the revision petitioner under Sec.319 of Cr.P.C. The order under revision is not contrary to law, so no 13 Crl.R.P.690/2015 interference is necessary from this court. Hence, for the above discussions, I answer point No.1 in the NEGATIVE.
16. POINT No.2: In view of my findings point No.1, I proceed to pass the following:
ORDER The revision petition filed by the revision petitioners under Sec.397 of Cr.P.C. is dismissed with cost.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 19th day of September 2015).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Session Judge, Bengaluru City.
14 Crl.R.P.690/2015