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 {{™ DAY OF NOVEMBER 2008-
BE EORE"
THE HON'BLE MR. JUSTICE
"ARALI NAGARA
CRIMINAL PETITION NO.1197/2007°
BETWEEN
SRI RAJ -
S/O. RAMANIK1AL DESAL, -
AGED ABOUT 49° YEARS,
OCC: BUSLNESS >
R/O, NGO 53, SHIVAST. CHOWK,
SOLAPUR,
MAHARAS'PRA, STATE --_
"(py set JAGADISH PATIL,
. "AND - 7
KANORTA INDUS STRIES LTD.
CEMENT PISTON,
BAGALKOT- 5o7rl
BY ITS MANAGER (ACTS)
- MR. MK. RAJGARIA
3/0. ONKARMALGI,
. AGED ABOUT 57 YEARS. .
(BY GANGADHAR HOSKERI,
THIS CRL.P.
Oo
PETE TEONER
ADV. }
RESPONDENT
ADV.) me IS FILED U/S.482 CR.PC PRAYING TO SET ASIDE THE ORDER DATED 28.10.2006 PASSED BY THE 2 ADDL.JMFC, BAGALKOT IN CC NO.1672/2000 AND' DISMISS THE PRIVATE COMPLAINT NO.37/2006 FILED By THE RESPONDENT BY ALLOWING THIS PETITION. ° THIS CRIMINAL PETLITLON COMING ON FOR ADMLSSLON THIS DAY, THE COURT PASSED THE, FOLLOWING: " .
The petitioner herein® who is accused in €C No.1672/2000 has challenged. the correctness of the order dated 28.10.2006 passed in the said case rejecting the application of the petitioner filed under Sect ions 202 and z0d of Cr.PC for recaliing of the. order "issuing" summons against him. Though this case. is listed today tor admission, having regard to the nature of the relief sought for in "this petition, the same is taken for final disposal "andthe arguments of Sri Jagadish Patil, the learned Advocate, representing the petitioner and also Sri Gangadhar Hoskeri, the learned counsel for the respondent, are heard on merits.
a
4. Perused the impugned order, the complaint fiied under Sectioon 200 Cr.PC by the responaent = complainant; the application of the pets tioner= accused filed betore the learned JMFC, Bagalkot, :
under Sections 202 and ?04 Cr.PC and othe: g material produced on record by the. dearned counsel ~ for the petitioner. The three grounds en "which -- the learned counsel for the. petitioner has attacked to the impugned order are; ~
(i) The cheques in. question" 'were issued as security, bet: not towards discharge of any debt existing as on the respective "dates of the, issue;
(ii) The) said. cheques were not signed by the rains but they were signed by his. power of attorney and theretore, in the absence of the Power of attorney (a8 an accused before the Trial Court, "the 'said case could not proceed against ching (Ai) 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 ooo 4 he cannot be made liable to pay. the amount under the cheques in question.
3. As against the above 'contentions of the learned counsel] for the petitioner, Sri Gangadhas Hoskerl, learned counsel : for the respondent-~ complainant strongly urged that the. fact, whether the cheques were issued as se curity for payment ot any amount as cont ended by 'the petitioner-accused constitutes his defence which. has to. be taken at the appropriate. stage. ot. the. tri al "but mot at the initial stage cf. issuing process against them. He further urged the t, when t he cheques were signed by the Power of 'Attorney, "in the name and on behalt of the petitioner, who. has, 'been admittedly partner of the said" firm, the. petitioner cannot contend that in: the absence of the person who actuaily signed 'thes said cheque, the said case could not be proceeded against the accused. Lastly, he urged
- that "since the: cheques have been issued by the . Power of Attorney holder of this accused, it goes £0. 'show that it was this accused who was responsible for the affairs of the firm as on the dates of issue of the said cheques.
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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 Trial Court ov. they were issued"
as security towards payment of some money by the accused petitioner to the 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 atounts to the defence of the petitioner-accused "which has to be taken at appropriate stage of the case. Therefore, on this ground, the impugned order cannot be disturbed.
Se Admittedly, as could be seen from the
--Caverments at para No.4 of the petition filed by "the petitioner-accused under Sections 202 and 204 Cx. PC, both the said cheques were issued by his "Bower of Attorney. When a document is signed by
--s 6 the Power of Attorney, it goes without Saying -that the Power of Attorney signs the said document in the name and on behalf of his principal vand by bound by such document executed 'by his Power of. Attorney by signing it in the name and on behalf of the principal. 'Therefore, when it is an admitted fact that the said cheques were issued by the Power of Attorney of this petitioner-accused, in the absense of any material produced on record by the petiticner-accused, along with the said application, that thé said Power of Attorney had no authority. whatseevér, even by virtue of recitals' in 'the "Power of Attorney, to sign and issue. the said cheques in the name and on behalf a: the accused, it could not be heid that the said ocase could not be proceeded against the petitioner-accused in the absence of his Power of 'Attorney as an accused.
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6. Since the cheques have has been issued by the Power of Attorney of this accused that itselt goes to show that this accused was responsible . for. the affairs of the Company/Firm... Besides. this, it"
is an admitted fact that the petitioner had seen the partner of the said firm. | Tf "ite ts his. specific case that as on thé date of issuing ot"
the said cheque, he was not" responsible in any manner to the affairs: of the, - firm as on the relevant dates of issuing of the, "said. cheques, he would be at liberty to establisn the same during the trial of the. case > and, rebut thereby the presumption | thav has to DE. raised in favour of the complainant therein "under Section 139 of the NI Act.
ra 'For the reasons aforesaid, I am of the considered» opinion "that the present petition is liable to. be dismissed as being devoid of merits and it: is dis missed accordingly.
Sd/« Judge ple