Karnataka High Court
Sri Raj S/O Ramaniklal Desai vs Kanoria Industries Ltd on 11 November, 2008
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE WN pay oF NOVEMBES. 2008 BEFORE | THE HON'BLE MR. JUSTICE ARALI NAGARAT 7 CRIMINAL PETITION. NO. 2207/2007 : BETWEEN SRI RAJ S/o. RAMANTKLAI. DESAT,. AGED ABOUT 49° YEARS, OCC; BUSINESS, R/O. NO 53, SHIVAUT CHOWK, SOLAPUR, _ | 7 MAHARASTRA S¥ATE PET LY LONER (BY SRI JAGADISH PATIL, ADV. } AND KANORIA INDUSTRIES LED., CEMENT DIVISION, -- BAGALKOT-5U7 113. "BY ITS MANAGER (ACCT'S} ~ MR. M.K> RAJGARIA . 8/0. ONKARMALJI , _ AGED AROUT 57 YEARS. . RESPONDENT
(BY GANGADHAR HOSKERI, ADV. } a . THIS CRL.P. IS FILED U/S.482 CR.PC PRAYING TO SET ASIDE THE ORDER DATED 28.10.2006 PASSED BY THE
- "ADDL. JMFC, BAGALKOT IN CC NO.1674/2000 AND DISMISS 'THE PRIVATE COMPLAINT NO.39/2000 FILED BY THE RESPONDENT BY ALLOWING THIS PETITION.
Ce THIS CRIMINAL PETITION COMING ON FOR ADMLSSTON THiS DAY, THE COURT PASSED ThE FOLLOWLNGi oO. io The petitioner herein'.who "is: accused in CC» No.1674/2000 has challenged. the "correctness of the order dated 28.10.2006 passed in the said case rejecting the application. of thé petitioner filed under Sections 202 and 204 of Cr. be for recalling of the order issuing Stienond against him. Though this case is listed today for admission, having regard to the nature of the relief sought for in this petition, 'the same is taken for final Gisposal and the arquments of Sri Jagadish Patii, the learned. Advecate, representing the petitioner ~ and also Sri Gangadhar Hoskeri, the learned ~-ecunsel for the respondent, are heard on merits.
2. Perused the impugned order, the complaint
-€iled under Sectioon 200 Cr.PC by the respondent-
"complainant; the application of the petitioner-
ee 3 accused filed before the learned JMEC, Bagalkot, under Sections 202 and 204 Cr.PC and other material produced on record by the learned counsel for the petitioner. The three grounds. en® which the learned counsel forthe. petitioner | has » attacked to the impugned ordeb are;
(i) The cheques .in question were issued as . security, © but not towards discharge of any debt existing as" on, the respective datos of the. issve;
(ii) . The said cheques were not signed by the petitioner-accused but they were signed by his power of attorney and therefore, in the absetice of the Power of attorney as van accused before the Triai
- Court, the said case could not "proceed against him;
4d) There is no specific averment in | the complaint that the petitioner had been the partner responsible to the day to day affairs of the firm namely M/s. Rajdeep Trading Company and therefore he cannot be
--o made liable to pay the amount.
under the cheques in question. © °
3. As against the above content ions (of the Learned counsel for the petitioner, Sri Gangaahar Hoskeri, learned counsel. for, 'the "respongent-- complainant strongly urged that the fact, whetner the cheques were issued.as security tor payment of any amount as contended 'by the "petitioner-accused constitutes his defence which hac. to be taken at the appropriate staqe of the trial but not at the initial stage of issuing process against them. He further urged that when. the cheques were signed by the Power of Attorney, in the name and on behalf G£ the petitioner, who has been admittedly partner of the said firm, the petitioner cannot contend that th the absence of the person who actually
-shaned the said cneque, the said case could not be "-procseden against the accused. Lastly, he urged hat since the cheques have been issued by the Power of Attorney holder of this accused, it goes 'to show that it was this accused who was Lo responsible for the affairs of the firm as on the dates of issue of the said cheques.
4. As rightly submitted by the learned counsel"
for the respondent-complainant whether the said cheques were issued "towards discharge of 'the existing debt as contended by the respondent- complainant in the 'rial Court or they were issued as security towards payment. of some money by the accused petitioner to thé complainant is a matter to be decided 'by the Trial Court on appreciation of evidence to be adduced by the respective parties. . The "contention that the said cheques were issued as. security amounts to the defence of © the petitioner-accused which has to be taken at aporopriate stage of the case. Therefore, on this _ ground, the impugned order cannot be disturbed.
5, Admittedly, as could be seen from the . averments at para No.4 of the petition filed by the petitioner-~accused under Sections 202 and 204 er 6 Cr.PC, both the Said chegues were issued: by his Power of Attorney. When a document ie signed -by the Power of Attorney, it goes without - "saying thet the Power of Attorney signs 'the said document 'in' the name and on behalf of his prineipsl' and by virtue of power of Attorney, the principal "becomes bound by such document executed by his. Power of Attorney by Signing we in the name and on behalf of the princig val. : Theretore, when it is an admitted fact that" the. said cheques were issued by the Power of etorney of this petitioner-accusea, in the absence of any material Produced on record by the petitioner- acciised, along with the Said application, that' the Said Power of Attorney had nO. authority whatsoever, even by virtue of recitals in the Power of Attorney, to sign and | issue the eaia cheques in the name and on behalf ot: 'the accused, it could not be held that the said "nase 5 could not be proceeded against the _..petitioner-accused in the absence of his Power of Attorney as an accused, 'aire ee 2
6. Since the cheques have has been) 'issued: by the Power of Attorney of this accused. that itself, goes to show that this accuser was respensibie for the affairs of the Company/ Firm. . 'Besides this, it is an admitted fact that the: betitione er hao seen the partner of the said. "firm. If it, 'is nis Specific case that as on-the date Sf dssuing one the said cheque, he was fet. responsible in any manner to the atfairs of the -firm aS on the relevant Gates or issuing of the 'said cneques, he would be ate liberty Jto-..establish the same during the trial ot. "the case. anc rebut thereby the presumption. that nas to be raised in tavour of the cottplainant, theréin' under Section 139 of tha a for-.the reasons aforesaid, I am of the consi ice ered opinion Enhat the oresent petition is Liable. tobe dismissed as being devoid of mer its and ities ai smissed accordingly.
Sd/= Judge