Bangalore District Court
Sri.P.Hariram vs Ms.Eswar Constructions on 13 October, 2015
IN THE COURT OF THE V ADDL. SMALL CAUSES
JUDGE & 24th ADDL. CHIEF METROPOLITAN
MAGISTRATE
Court of Small Causes, Mayo Hall Unit, Bangalore
(SCCH-20)
Dated this the 13th day of October, 2015
Present: Smt.K.BHAGYA,
B.Com., LL.B.
V Addl. Small Causes Judge & XXIV
A.C.M.M., Bangalore.
C.C.No.60988/2009
Judgment U/s 355 of Cr.P.C
Complainant : Sri.P.Hariram,
Aged about 73 years,
Son of late P.Ethiraju,
Residing at No.109, 2 'D' Cross,
OMBR Layout,
Bangalore - 560 033.
(By Pleader Sri.P.S.Anandan)
(SCH-20) 2 CC 60988/09
V/s
Accused : 01. Ms.Eswar Constructions, (R),
Office No.33-34, Kathriguppe Main
Road, Opp: Ganesh Temple,
Vivekananda Nagar,
B.S.K. III Stage,
Bangalore - 560 085.
02. Originally represented by its
Managing Partner, Sri.M.Eshwar
Raju.
03. Smt.Dhanalakshmi,
Wife of late Sri.M.Eshwar Raju,
Now Managing Partner of Ms.Eswar
Constructions, (R),
Office No.33-34, Kathriguppe Main
Road, Opp: Ganesh Temple,
Vivekananda Nagar,
B.S.K. III Stage,
Bangalore - 560 085.
(By Pleader Sri.K.M.Somashekar for
A3)
The offence complained
of or proved : U/s 138 of Negotiable
Instruments Act.
Plea of accused &
their examination : Pleaded not guilty
(SCH-20) 3 CC 60988/09
Final order : Acting U/sec. 255 (2) of
Cr.P.C. accused No.3 is
convicted
Date of such order : 13-10-2015
* * * * *
J U D G M E N T
The complainant by name Sri.P.Hariram, has filed this complaint against the accused No.1 by name Ms.Eswar Constructions (R), originally represented by its Managing Partner, accused No.2 by name Mr.M.Eshwar Raju and now Managing Partner accused No.3 by name Smt.Dhanalakshmi, for the offence punishable U/Sec 200 of Cr.P.C. for the offence punishable and U/Sec 138 of N.I. Act r/w Sec.420 of IPC.
02. It is the case of the complainant that:-
The accused No.2 was a good friend of the complainant for the past 10 years, he came to be introduced to him by a common friend (SCH-20) 4 CC 60988/09 Sri.Dayanidhi, an Engineer, who is residing at Cox Town, Bangalore and the accused No.2 was in financial difficulties, in order to improve his organization namely accused No.1, he approached the complainant during the month of May 2008 and requested him to pay a sum of Rs.5,00,000-00 as hand loan and promised that, he will pay back the said amount within six months. The complainant paid a sum of Rs.2,50,000-00 to the accused No.2 by obtaining money from some of the known persons and friends during the month of 7th June 2008. After receiving the amount by cash, the accused No.2 has issued a crossed postdated cheque in favour of the complainant, signed by him as Managing Partner for accused No.1, bearing No.607849 dt:06-02-2009 drawn on Punjab National Bank, Hudson Circle Branch, Bangalore. The complainant has not presented the said cheque to the bank, thinking that the accused No.2 will pay cash and take back the cheque. After having waited for some days, the complainant presented the said cheque on 02-03-2009 through his bankers i.e., (SCH-20) 5 CC 60988/09 M/s Syndicate Bank, Banaswadi Branch, Bangalore, and the same was returned with an endorsement as "Insufficient Funds" on 03-03-2009.
03. It is further case of the complainant that, he came to know the death of accused No.2 and thereby issued a legal notice on 14-03-2009 within 15 days from the date of return of the cheque issued by the accused No.2, to his wife accused No.3-Smt.Dhanalakshmi, who is now looking and Managing Partner of accused No.1 in place of her husband, asking her to pay the cheque amount within 15 days from the date of receipt of the legal notice. Even after receipt of notice, the accused No.3 failed to pay the cheque amount. So, the complainant is before this Court with this complaint against the accused.
04. After registration of complaint, summons has been issued to the accused. After the issuance of summons, the accused No.3 has appeared before the Court through her counsel and enlarged on bail. Thereafterwards, this Court has recorded the plea of the accused. As the accused pleaded not guilty (SCH-20) 6 CC 60988/09 and claimed to be tried, the case was posted for complainant's evidence.
05. The advocate for complainant has relied upon the following decisions:-
01. II (1997) CCR 485 (Madras) (Sagayadurai and others Vs J.D. Electronices)
02. M.M.Malik and others Vs Prem Kumar Goyal (Punjab and Haryana), February 14, 1991, Company Cases
03. Sec.141-Offences by companies
06. In order to prove the case of the complainant, the complainant himself got examined as P.W.1 and 6 documents got marked as Ex.P.1 to Ex.P.6 on his behalf. He was fully cross-examined by the advocate for the accused No.3. Then this Court has recorded the statement of the accused No.3 U/sec 313 of Cr.PC. As the accused No.3 submitted that, she would adduce her defence evidence, then the case was posted for defence evidence. Then the accused No.3 herself got examined as D.W.1 and got marked document at Ex.D.1 on her behalf. She was fully cross-examined by the advocate for the (SCH-20) 7 CC 60988/09 complainant. Then the case was posted for arguments.
07. Then this Court has heard the arguments of both side. Now the case is for pronouncement of Judgment.
08. Now the points that arise for my consideration are as follows:
1. Whether the complainant proved that, the accused have committed an offence punishable U/Sec 138 of N.I. Act?
2. What Order?
09. My answers to above points are as follows:
Point No.1 : Partly in the affirmative Point No.2 : As per the final order for the following:
REASONS
10. Point No.1:- As already observed above, here the complainant by name Sri.P.Hariram, has filed this complaint against the accused for the offence punishable U/Sec. 138 of N.I. Act. Here, the (SCH-20) 8 CC 60988/09 accused are 1) M/s Eswar Constructions (R), 2) the earlier Managing Partner Sri.M.Eshwar Raju 3) Smt.Dhanalakshmi, now the Managing Partner of Ms.Eswar Constructions (R).
11. Here, as already observed above, the averment of the complaint is that, the accused No.2 Mr.M.Eshwar Raju was in financial difficulties and in order to improve his organization by name Eswar Constructions (R), approached the complainant during the month of May 2008 and requested for Rs.5,00,000-00 as hand loan and promised to repay the said amount within six months. So, the complainant has paid Rs.2,50,000-00 to the accused No.2 on 7th June 2008. After receiving Rs.2,50,000-00 in cash, the accused No.2 has issued a postdated cheque signed by him as a Managing Partner of M/s Eswar Constructions (R), issued the present cheque. When the complainant presented the said cheque for encashment on 02-03-2009, it was returned on 03-03-2009 with an endorsement as "Insufficient Funds". Thereafterwards, the complainant came to know about the death of (SCH-20) 9 CC 60988/09 accused No.2 and then issued a legal notice on 14-03-2009 to this accused No.3- Smt.Dhanalakshmi, who is the wife of accused No.2 and also the present Managing Partner of M/s Eswar Constructions. Even after receipt of the notice, the accused No.3 not repaid the cheque amount. Hence, the complainant is before this court with this complaint.
12. In order to prove the case of the complainant, the complainant Sri.P.Hariram got examined as P.W.1. He has filed his affidavit in lieu of his chief examination, in which he has reiterated all the averments made in the complaint itself. Further he has produced as many as 6 documents. Ex.P.1 is the original Cheque alleged to be issued by the accused No.2, Ex.P.2 is the Bank endorsement as, "Funds Insufficient", Ex.P.3 is the Office copy of the Legal notice dt:14-03-2009 issued by the advocate of the complainant to the accused No.3-Smt.Dhanalakshmi calling upon her to pay the cheque amount, as she is the Managing Partner of the accused No.1. Ex.P.4 is the RPAD receipt, Ex.P.5 is the Postal (SCH-20) 10 CC 60988/09 acknowledgment for having received the said notice by the accused No.3 and Ex.P.6 is the copy of Register of Firms issued by Registrar of Firms, Basavanagudi, Bangalore. These are all the documents on which the complainant has relied upon.
13. Here, it is very important to note that, the definite case of the complainant is that, he had paid an amount of Rs.2,50,000-00 to the accused No.2, who was the Managing Partner of accused No.1. He had issued the present cheque towards the payment of the said sum of Rs.2,50,000-00. But before issuance of notice itself the complainant came to know the death of accused No.2 and hence he had issued the notice to the accused No.3 who is the present Managing Partner of accused No.1. Here, it is the definite case of the complainant that, the accused No.1 i.e., M/s Eswar Constructions is a registered partnership firm. The accused No.2 was the earlier Managing Partner. Now the accused No.3 who is none otherthan the wife of accused No.2 is the present Managing Partner of the accused No.1- M/s Eswar Constructions. Hence, the complainant's (SCH-20) 11 CC 60988/09 argument is that, he has filed this complaint against these accused Nos.1 to 3. Here, it is very important to note that, the complainant has rightly made the accused No.1-M/s Eswar Constructions as an accused. The complainant also made Smt.Dhanalakshmi as accused No.3 as now she is looking after the business of the accused No.1 as a Partner of accused No.1. Thus, these accused Nos.1 to 3 have been rightly made as accused in this complaint. But the argument and also the defence of the accused No.3-Dhanalakshmi is that, she is not at all responsible for the repayment of the cheque amount, presented in this case . She has denied the issuance of cheque by her husband. She has also argued that, she is in no way concerned with the accused No.1. So, she prayed to dismiss the complaint filed against her. This complainant i.e., P.W.1 has been thoroughly cross-examined by the advocate for accused. In the cross-examination the complainant has deposed that, he came to know about the death of Eshwar Raju in the year 2009 only. He has denied that, he was aware of the death (SCH-20) 12 CC 60988/09 of Eshwar Raju on 14-08-2008 itself. Further he has also deposed in his cross-examination stating that, when he has paid Rs.2,50,000-00 amount to the Eshwar Raju, he had issued the present cheque. He has denied that, eventhough he knew the fact of death of Eshwar Raju on 14-08-2008, he has presented the present cheque for encashment and got it dishonoured and obtained the bank endorsement at Ex.P.2. Here, it is very important to note that, there is alteration on this Ex.P.1 i.e., cheque. The original date on this Ex.P.1 appears to be as "06-08-2008". The said date has been altered and a new date has been written as "06-02-2009". Here, it is the definite defence of the accused No.3 that, her husband died on 14-08-2008. So, after coming to know about the death of her husband, this complainant altered the date on this Ex.P.1 and presented for encashment. Though, the accused No.3 has argued like this, it is very important to note that, on this Ex.P.1, though there is a change of date on the cheque, but it is signed by the person who has issued it i.e., accused (SCH-20) 13 CC 60988/09 No.2. Moreover, this complainant has deposed that, Sri.Eswar Raju only got it corrected the date, month and year by putting his signature on Ex.P.1.
14. Further, as already observed above, the defence of accused No.3 is that, she is not at all concerned with the present cheque produced in this case. She has deposed that, she do not know the signature found on Ex.P.1 cheque. She has denied that, her husband had issued the present cheque to the complainant towards the amount payable by accused No.1 to the complainant. Here, it is very important to note that, this Ex.P.1 cheque has been issued "for Eswar Constructions........... Managing Partner". The complainant identified the signature on this Ex.P.1 as that of accused No.2 i.e., Sri.Eshwar Raju. Thus, this Ex.P.1 cheque itself clearly reveal that, the present cheque has been issued by the accused No.2 for and on behalf of Eswar Constructions. The complainant also produced another important document i.e., the Register of Firms of M/s Eswar Constructions, which is marked at Ex.P.6. This document clearly reveal that, the (SCH-20) 14 CC 60988/09 said Eswar Constructions got registered on 02-06-2001. It also reveal the name of the Partners as, "1) M.Eswara Raju, 2) Smt.S.Dhanalakshmi 3) S.S.Hanumantha Raju 4) B.S.Subba Raju". This document also reveal the date of joining of these partners as, "14-11-2000" and it is also reveal the place of the office of the partnership firm as, "No.33 & 34, Kathriguppe Main Road, Vivekanandanagar, BSK 3rd Stage, Bangalore-85". Thus, this Ex.P.6 clearly reveal the name of partners of M/s Eswar Constructions. As per this document, the accused No.3 Smt.Dhanalakshmi also one of the partner. Further, it is very important note that, this accused No.3-Dhanalakshmi has stated at the time of recording of plea by this Court as, " £À£Àß UÀAqÀ ZÉPÀÄÌ PÉÆnÖ®è, vÀ¥ÀÅà ªÀiÁr®è, £À£Àß UÀAqÀ ªÀÄÈvÀ¥ÀlÖ £ÀAvÀgÀ £Á£ÀÄ J-1 PÀA¥À¤AiÀÄ£ÀÄß £ÉÆÃqÀÄwÛzÉÝãÉ". Further, this accused No.3 Smt.Dhanalakshmi also got examined as D.W.1. In the cross-examination she has deposed that, when her husband Eshwar Raju was alive, he was the Managing (Partner) of M/s Eswar Constructions. (SCH-20) 15 CC 60988/09 She has also deposed in her cross-examination as, " ¸ÀzÀj ¸ÀA¸ÉÝUÉ £Á£ÀÄ ¸ÀºÀ ¥Á®ÄzÁgÀ¼ÁVzÉÝ (Partner), CVzÉÝãÉ". Thus, she has admitted in her cross- examination that, she was/is a partner of M/s Eswar Constructions. Her cross-examination reveal that, the said partnership firm is a building construction company. Further the advocate for complainant also suggested regarding the allotment of flat to the complainant's son and thereafterwards the said partnership firm again sold out the same to another lady. But these things have been denied by the accused No.3. Further she has deposed that, she do not know who is Subba Raju, but Hanumantha Raju is her father. The Ex.P.6 Register of Firms reveal the said S.S.Hanumantha Raju and B.S.Subba Raju are also the partners of M/s Eswar Constructions.
15. Thus, here in this case the earlier Managing Partner M.Eshwar Raju had issued the present cheque ' for Eshwar Constructions '. Here, at this juncture, this Court would like to rely upon the decision reported in III (2005) BC 391 (SC) (SCH-20) 16 CC 60988/09 (Monaben Ketanbhai Shah and another Vs State of Gujarat and others), in which it is held as under:-
"Dishonour of cheque: Offence by Company: Absence of averments in complaint against appellants except stating in title they are partners of firm: Filing of partnership deed later on is of no consequence for determining point in issue: Criminal liability fastened on those who at time of commission of offence, was incharge of and responsible to firm for conduct of business of firm:
These may be sleeping partners, ladies and others who may not know anything about business of firm:
Primary responsibility is on complainant to make necessary averments in complaint to make accused vicariously liable: Impugned Judgment of High Court set aside and order of Magistrate discharging appellants restored - N.I. Act, 1881 - Ss.138, 141".
Thus, in this present complaint also, it is clearly stated that, as Mr.Eshwar Raju is no more, now the present partner Smt.Dhanalakshmi is looking after the said firm and is responsible for the conduct of (SCH-20) 17 CC 60988/09 the business of the firm. In the same way, I would like to rely upon another decision reported in 2014 AIR SCW 1877 (Mannalal Chamaria and another Vs State of West Bengal and another), in which it is held as under:-
"N.I. Act (26 of 1881), Ss.138, 141 - Dishonour of cheque -
Offence by company - No specific allegations against appellants in a complaint that they were incharge of and responsible for conduct of business of company at relevant time - Complaint quashed".
Thus, in the complaint eventhough the Ex.P.6 i.e., the Register of Firms reveal the names of other two partners, in this complaint the main partner who is responsible for the conduct of the business has been made as accused. Further, as already observed above, while recording the plea, the accused has clearly stated as, " £À£Àß UÀAqÀ ZÉPÀÄÌ PÉÆnÖ®è, vÀ¥ÀÅà ªÀiÁr®è, £À£Àß UÀAqÀ ªÀÄÈvÀ¥l À Ö £ÀAvÀgÀ £Á£ÀÄ J-1 PÀA¥À¤AiÀÄ£ÀÄß £ÉÆÃqÀÄwÛzÉÝãÉ". Moreover, this Ex.P.6- Register of Firms reveal that, this accused No.3 Smt.Dhanalakshmi has joined the firm as a Partner (SCH-20) 18 CC 60988/09 since 14-11-2000. So, now she cannot contend that, after the death of her husband i.e., Eshwar Raju, she has been looking after the firm. Thus, she being the Partner of M/s Eswar Constructions, liable to pay the cheque amount as the present cheque was issued by Sri.M.Eshwar Raju 'for M/s Eshwar Constructions'.
16. In the complaint, the address of this accused No.3 shown as, "Smt.Dhanalakshmi, Wife of late Sri.M.Eshwar Raju, Now Managing Partner of Ms.Eswar Constructions, (R), Office No.33-34, Kathriguppe Main Road, Opp: Ganesh Temple, Vivekananda Nagar, B.S.K. III Stage, Bangalore
- 560 085". The notice sent by the complainant to the address "Smt.Dhanalakshmi, Wife of late Eshwar Raju, Sri Chaitanya Education Society (R), No.33-34, Kathriguppe Main Road, Opp:
Ganesh Temple, Vivekananda Nagar, B.S.K. III Stage, Bangalore - 560 085". Actually, the said notice sent by the complainant to this address was received by the said Chaithanya Education Society. It is very important note that, in the place of "M/s (SCH-20) 19 CC 60988/09 Eswar Constructions (R), now there is "Sri Education Society (R), running by this Smt.Dhanalakshmi, W/o M.Eshwar Raju", who is the accused No.3 in this complaint. So, now she cannot contend that, she has not received any notice sent by the complainant.
17. Thus, in this case, it can be held that, the present cheque was issued by Sri.M.Eshwar Raju "for Eshwar Constructions........ Managing Partner", towards the amount due by Eshwar Constructions to the complainant. Ofcourse, the said M.Eshwar raju is no more. But his wife Smt.Dhanalakshmi, who is also the Partner of M/s Eswar Constructions, is liable to pay the said cheque amount to the complainant.
18. Under the above said facts and circumstances, it can be held that, the complainant has proved that, the accused No.1 M/s Eswar Constructions and accused No.3-Smt.Dhanalakshmi have committed the offence punishable U/sec 138 of N.I. Act. As accused No.2 M.Eshwar Raju is no more, this complaint against the accused No.2 has to be (SCH-20) 20 CC 60988/09 dismissed. Hence, I answered point No.1 partly in the affirmative.
19. Point No.2:- In view of my findings on Point No.1, I proceed to pass the following:
O R D E R Acting U/Sec 255(2) of Cr.P.C, accused No.3 being the Managing Partner of accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for one year for the offence punishable U/Sec 138 of N.I. Act.
Acting U/Sec 357(3) of Cr.PC, accused No.3 is directed to pay a compensation of Rs.5,00,000-00 to the complainant towards the loss suffered by it.
Out of the total compensation amount of Rs.5,00,000-00, a sum of Rs.10,000-00 shall be deposited to the State as fine amount.
In default of the aforesaid compensation/fine amount, accused No.3 shall further undergo simple imprisonment for a period of six months. (SCH-20) 21 CC 60988/09
Bail bond if any executed by the accused is stands cancelled.
Supply free copy of this Judgment to accused immediately.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in open court on this day of 13th October, 2015) (K.BHAGYA) V ASCJ & XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bangalore.
Annexures Witnesses examined for Complainant:
P.W.1 P.Hariram Documents marked for Complainant:
Ex.P.1 original Cheque
Ex.P.2 Bank endorsement
Ex.P.3 Office copy of the Legal notice
Ex.P.4 RPAD receipt
(SCH-20) 22 CC 60988/09
Ex.P.5 Postal acknowledgment
Ex.P.6 Register of Firms issued by Registrar of Firms, Basavanagudi, Bangalore Witnesses examined for defence:
D.W.1 Dhanalakshmi Documents marked for defence: Ex.D.1 copy of the Judgment passed in CC No.35615/2010 by the 25th ACMM Court.
(K.BHAGYA) V ASCJ & XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bangalore.