Karnataka High Court
M/S Rajashree Finance Corporation (R) vs A Joseph on 7 January, 2010
accused issued a cheque dated 26.2.2002 drawn on
Canara Bank. 'l'umkur Road Bmach towards principle
and interest of the loan arnount, payable and when the
said cheque was presented for ericashmerit, the
was returned with Bankers €11d01'S€1'I?4l€HE1{"
insufficient'. Immediately tthereafter,
served a legal notice on
about t.he dishonouring ll
him to pay the entire yunde'r*th"e cheque
within the statutory the notice was
served on failed amount. as such
he 'punishable under'Sect1on 138
of the
leai"«n.e.d«Magistrate after taking cognizance
loft 'i;he'=oi"fei'ic(%;«, issued summons to the accused. Upon
service oi"ls'j_:u:i1n1<)ns. the respondent: ~ accused appeared
before learned Mag_istrai.e and pleaded not guilty for the'<,accusat.io1'1 made against. him and claimed to be tried. During the trial. one Basavaiah claiming to be the 55*"
' I Power of Attorney hoider of Smtlisha, Managing Partner of the eoiipiainarit ~ Corporation was examilhed as PW.} and ExsfP.l to 13.8 were marked. got himself examined as DW. 1. During under Section 318 Cr.P.C., the incriminating Cireumst.anees 'appearing Vaga'in,st.__hir;§i in the prosecution evidence.
4. T he C1,éf*:_r1ce;"oi"*ifi'[{1'€;" one of total denial. d..urin'g he had taken eertairi----1e-an'i5r.orii::;:fi.he-etirnpllainarit at which time he had handed over' ' cheque and other blank documents, deri1a:3;Ied- by the complainant and he di"s'(:hva...rged the? loan amount. the signed E as Well as the documents were not rei;iirned"Eo_ and subsequently those blank cheque as w'e1l1as the cloetiments appears to have been mis- by the compiainant to make a false claim. /3 is not signed by any of the partners. On the other hand it is signed by the person who is st,at.ed to be a G.P.A Holder of one of the partners: of the firm.
9. As per Section 1.8 of the Indian Part11ershipi_"Aet..A' 1932, a partner is an agent of the firm for 1 V' of the business of t.he firm. "The1*eforer.«a'.oA the agent of the! firm cannot 'R \ . 4 agent to anothef person and"~vs.th'ereafter.'bind of V such agent on the othei<._'parft:riers:'efthe i'irm'§" Though a partner of the firm is interest in the 29 of the Indian Partnership_VAet' .impos.e's certain restrictions on the tra_n§s.fe:ree of sti't%h._._iIn;erest.. According to Section 29 a tra'nsfeir of his interest. in the firm, either absoiute rnortgage, or by the creation by him of a charge on such interest. does not entitle the transferee, "7_during the COI1T.iI1t1aI1CtT of the firm. to interfere in the ._ V i V conduct of the bfisiness, or to require accounts, or to m inspect the books of the firm. but entities the transferee only to receive the share of profits of the transferring partner. and t.he transferee shall accept the acctount of the profits agreed to by the partners. From ctear that even a transferee of an interest. of if of the firm has no right to imerf7e;.'v'emin"the'f«.cOf1a§tcfL'*f--the.*; business of the firm. If opinion a partner who cannot further anothe'rf person and thereby bind the agent on the other partners.' the7.ai:i»senee of--.a1E..the partners of the complainant's p'afrtpne.rs'nip- firm resolving to constitute the person 4-who ha:sfsign_e'd the complaint. as their agent comptaint signed and presented by oftheftfjsaidffiasavaraj. so calied G.P.A Hoider of one of the t"'pa~rtnfers"'--of the-:*'firrn is not tenabie and the court below ought 1jOii.if.f()A have received the complaint presented by V"-such persoii and could not have taken cognizance of the 9 offence. Therefore. the very con"1p1aint' filed was defective.
10. Though according «.t11fifp"' ' appellantfcornplainant a sum of .' advanced to the resp<)ndent'««..as V1oavn'};t.._V_ViVs not forthcoming to hotfv -
was disbursed to As per Section 269 (ssjof :11¢a'1m§::t;g«¢ person shall take OT mioan or deposit of Rs.20,QO0,/_gi"'~o'r an account payee cheque; It the appellant that the loan amount paid by means of account payee icfhequed complainant: being a registered 'finance._Vcorpoziation was also required to maintain acco'tintS.'?£aéa:'notai(1ed by the learned 1Viagiste1'at.e, in spite of spe~ci'fi_c. directionsis, the complairiam'; failed to produce theaccourlt. 1"egist.er. 'I"r1oL1gh in the complaint specific " a'};Ierments have been made that the accused executed ll} certain d()Ct,1IT1C?I1'[.S in favour of the complainant with regard to loan transaction no SL1Cl'1 document. was marked in evidence before the court below.
11. it subrnittied by the learned téot1l1sel' the appeliant that certain loan <i(>ou;f11e11_ts eX«ee':f1teti'*by_ll'the accused have been produced before-- eotirt by over sight they have Heourt cannot look into in this appeal to find 'fault of the Court below. If it was the duty the to have the same marked during th'ee4_c:cmrSe oifevidfence and give an opportunity to the.riesptmden't';'5_aA(:eused to eontrovert the same or when the aeeus.ed«-._vhimse1f was in the witness box the Ai'--ClOC~11I11v!3:lf{13l;.SV, i'f._a~11y, said to have been executed by him should been confronted to him. No such attempt ehas 'oelep made during the course of the evidence. lig.,'l'i11e.r.efore. there is no dii'l'ieL1It.y in holding that the 5'} presumption under S€'E{.'ti.(')i] 139 of the N.I.Aet: that the cheque has been issued by the drawer and ae(:ept.ed7by drawee towards the discrhaijsge of such debtf"or..'other42 liability can be raised. In the (:2-xse ()1)-"l".'c1.¥:'1~Cl "e}<eept'"
relying on the eheque in the Complainant: has not plaeedyt to Show that: loan of die-bursed to the respondent/ complainant has failed to vproV__e debt or other liability. the court below has of drawing of the Act did not arise.
The respondeirit /'a'c:(:1._e1ise_('ii' by entering into the witness .__bo:.§L4hagiczaytegori'ea.l.l.y.Vstated ihate he had availed certain t.i"1eeomplainant in the year 1995 and at that oi'.ltiin_e..}h<: had handed over siggnetd blank cheques. other doeument.s as demanded by the complainant V"--v'_an_d4"'§:hough he repaid the entire loan amount borrowed in the year £995. the complainant did not return those signed blank cheque anti documents. The witness examined on behalf of the complainant admits that the respondent] accused had borrowed certain mone}r.kii1a.44 the year 1995 and the same had been _ absence of any acceptable evidence _-'to"xs_ho'w "the existence of debt. borrowed by the acciiesetiji the defence put forth by liighhr
13. It is well seéiisd }'_awi-- accused is not required to prove his d.efenvceV--.to.,Lhi1tc. reasonable doubt as iiis done by the compla-ina1'1'€/-. It 'is sufficient if the accused bring out"c_ireurnstar1C:es;to indicate that his defence is higii-iyvp1'obabI7e'=»and«acceptable. it is also well settled 5 _____ _.
'thatVti1e'acCc.1u"sed in order to substantiate his defence, it is not ne?jessa1'y for him to enter the witness box. Hovvtevetrt in the case on hand the accused after entering A Cfinto«-..«witness box has stated on oath regarding his defence. The said defence appears to be highly probable §é,/ in the absence of any evidence placed by the complainant in proof of existence of debt or other liability to the tune of Rs.6,00,000/-- as stated4el§)y.':l'lth_e complainant. in the complaint. in this view tiftlhle' 'mva.tte.r__ _ in my considered opinion, the cuo1A,A1M1't. bel.o"w'v* held that the complainant has failed :_t;o 'the 'c;:_{:' the accused for offence L:11de:r"S_ection K138 Therefore, the court. below isy__}ustifiVe»d aequitting the accused for the offerzce' Section 138 of N.l.ACt.
u for the appellant submitted" 'matter be remanded to the ...y.Acourf;. lvbelow "t.'e.____g_ive further opportunity to the colrnp1a1i1an«t,yVlto__rnark the documents already produced ar1d"=to other documents. However. said '.Vrequestl'cahr14not be acceded to. The complainant had A opportunity to produce the relevant documents. ' There was specific direction to produce the documents. @.
15 in spite of the same he 'failed to prochlee. Under these circumstances, the question of remaliding the matter to give further opportunity to the eompiainant. d0e$ not arise. The rerndnd of the ease to the court be10WW0_u'}d Certairfly Cause great prejudice to the aecrurged. V' View of the matter I see no merit ii1""f,hiS a-;[;');{3e£;§i1'e.*VI. "
Aceo1*ding1y, the appeal is -
RS/KVN* V