Punjab-Haryana High Court
Ghawa Ram And Sons And Ors. vs Punjab Syndicate Finance (India) Pvt. ... on 17 January, 1997
Equivalent citations: [1998]92COMPCAS139(P&H)
JUDGMENT S.S. Sudhalkar, J.
1. Similar points for determination are involved in these revision petitions and, therefore, they were heard together and are disposed of by this common judgment.
2. I have heard Mr. Kuldip Sanwal, the learned advocate for the petitioners, and Mr. D.V. Gupta, the learned advocate for the respondents. The learned advocate for the petitioners has also stated that the points involved in all these revision petitions are the same and for reference he has referred to some documents in connection with Crl. Revision No. 584 of 1995.
3. The complaints were filed against the petitioners for the offences under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"). So far as the arguments regarding the reasons for dishonour of the cheque are concerned, the learned advocate for the petitioners did not press this point at the time of arguments in view of the ruling of the Supreme Court in the case of Electronics Trade and Technology Development Corporation Ltd. v. Indian Technologists and Engineer's (Electronics) (P.) Ltd, [1996] 86 Comp Cas 30 ; [1996] 1 Recent C.R. 592. Looking to this position, it is not necessary to discuss this point.
4. The learned advocate for the petitioners argued that there is no allegation that the petitioners were in charge of the company. He has referred to the complaint, annexure P-1, in Criminal Revision No. 504 of 1995. He has referred to paras. 3 and 4 of the said complaint which was filed in the trial court. However, on perusing the complaint as a whole, it transpires that there are allegations that petitioner No. 1 is the partnership concern and the other accused are the partners. So far as signatures on the cheque are concerned, it is admitted by the learned advocate for the petitioners that it is signed by accused, Ajay Kumar Malhotra, who is impleaded as a partner in the complaint.
5. The learned advocate for the petitioners has drawn my attention to certain lines of paragraph 3 of annexure P-1. In the said paragraph, there is an allegation that petitioner No. 1 through its partners (other petitioners--accused in the trial court) approached the respondent-company in or about May, 1993, and expressed a desire to obtain a loan/financial help of a sum of rupees one lakh. It is also stated therein that this amount was to be repaid by monthly instalments of Rs. 5,000 each and towards the repayment of aforesaid amount, cheques were issued. The learned advocate for the petitioners has argued that the partnership cannot be said to be liable because there was no partnership on the date of the issuance of the cheques. However, on seeing the cheques, the photo copies of which are attached with the files of the original case papers, it can be seen that the cheques are signed for Ghawa Ram and Sons as partner, It is an admitted fact that signatures are of Ajay Kumar Malhotra (one of the petitioners). So far as the existence of the partnership is concerned, learned counsel for the petitioners has drawn my attention to the dissolution deed, annexure P-2, and has argued that by virtue of the dissolution deed, Ajay Kumar and Shail Kumar, parties Nos. 1 and 2, have decided to retire from the fold of partnership with effect from March 11, 1992. Relying on this document, he has argued that the partnership and partners cannot be held liable because there was no partnership in existence on the date of issuance of the cheque. However, the cheques are signed in the capacity as partner for Ghawa Ram and Sons, i.e., petitioner No. 1. It is not shown to me that the dissolution deed was either shown to any of the respondents or the partnership registered (if at all) with the Registrar of Firms has been cancelled. It is apparent that the person signing the cheque has made it clear that he has signed it as a partner and for the partnership firm. He cannot back out from the liability of signing as such and other partners also at this stage cannot be said to be not liable. It is a matter of evidence which will have to be considered at the time of trial and it will be hazardous to accept this argument of the learned advocate for the petitioners at this pre-trial stage.
6. The next argument advanced by the learned advocate for the petitioners is that there is no evidence of alleged loan and even in a proceeding in a civil court, a decree could not have been obtained. This argument of the learned advocate is not acceptable. There is an allegation of loan. The payment was made by the cheque. At this prima facie stage even if there is no document to show that the amount was taken by way of loan, it cannot be said that in all such cases, no civil suit can be decreed. The accepting of the oral evidence without support of the documentary evidence is a matter of appreciation of evidence in each particular case and it will have to be done at the trial, when the court will be called upon to decide the truth or otherwise of the alleged evidence. This can be done even in the civil court, and though in support of the fact a written document for loan is not there, it cannot be said that in all cases, suits will not be maintainable or that they cannot be decreed.
7. The learned advocate for the petitioners has cited before me the case of Sushil Singla v. Haripal Singh [1994] 1 Recent C. R. 621. It has been . held therein that when there was no averment that the said directors were in charge of and responsible to the company for the conduct of its business, the complaint qua directors be quashed. Here in this case, as referred to in the earlier part of this judgment, in complaint annexure P-1, there is an allegation that petitioner No. 1 through its partners (petitioners Nos. 2 and 3) approached the respondent-company for loan and it is also alleged that the loan was to be re-paid by monthly instalments. The cheques, as mentioned above, are also signed on behalf of the partnership and signed by one petitioner alleging himself to be the partner.
8. The learned advocate for the petitioners has cited before me the case of Goa Plast Pvt. Ltd. v. Chico Ursula D' Souza [1996] 3 Recent C. R. 404 ; [1997] 1 KLT 21. It is held in the said case that no evidence was brought by the employer to show that the employee was liable to pay the amount and no business, commercial or mercantile relations between drawer and drawee of cheque were established and, therefore, the offence under Section 138 of the Act was not made out. However, it can be seen that the question was considered by the High Court in a criminal appeal which arose because of the acquittal in the criminal case. It was a case decided after the evidence was recorded and not at the pre-trial stage and, therefore, this point does not help the petitioners at this stage.
9. The learned advocate for the petitioners has also cited before me the case of Amrit Rani v. Surinder Kumar Sachdeva [1992] 2 Recent C. R. 16. It is held in the said case that when there was no allegation that the accused partner was in charge of the business or was responsible to the company for its business, no offence against the accused was made out under Section 138 of the Act. Herein in this case, because of the prima facie evidence, which is discussed above, the said finding is not applicable.
10. In view of the above reasons, these revision petitions are without any merit and are dismissed. It is of course clarified that this finding has been given at this stage when evidence is still to be led before the trial court and shall not affect the merits of the case when the case is decided by the trial court after considering the evidence.
11. The stay stands vacated.
12. The parties are directed to appear before the trial court (either personally or through their counsel) on February 3, 1997.