Bangalore District Court
Lokesh vs Nityashree on 30 July, 2020
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 30 th day of July, 2020
PRESENT
Smt. K.KATHYAYANI., B.Com, L.L.M .
LXVI Addl.City Civil & Sessions Judge,
Bengaluru
Crl.Appeal.No.1290 of 2018
Appellant: Lokesh,
S/o Heddappa Shetty,
Aged about 39 years,
R/at No.637, Dwarakanagar,
3rd Cross, Rajarajeshwari Nagara,
Channasandra, Bengaluru 560 098.
(By Sri.N.Sathyanarayana, Adv.)
/Vs/
Respondent : Nityashree,
S/o Anand,
Aged about 22 years,
R/at No.76, Shashidhar Layout,
Dwarakanagar,
Rajarajeshwari Nagara,
Channasandra,
Bengaluru 560 098.
(By Sri.SR,Adv.)
JUDGMENT
The appellant/accused has preferred this appeal against the respondent/complainant under Section 374(3) of Cr.P.C. being aggrieved by the judgment of conviction 2 Crl.A.No.1290/2018 passed in CC.No.19837/2017 dated 15.06.2018 by the learned XXII ACMM, Bengaluru.
2. For the sake of convenience, the ranks of the parties are retained as they are before the learned Magistrate Court.
3. The brief facts of the case are that;
a) The complainant has filed the present complaint against the accused on the ground that she and the accused being close friends had started partnership business in the name and style of "Shree A-1 Super Market" at No.77, 3rd Cross, Seshadri Layout, Dwaraka Nagar, Bengaluru, wherein she had invested Rs.4,00,000/- and after 3 months, due to her ill health, she intended to retire from the said partnership and expressed her inability to continue in the said partnership business.
b) The accused paid her a sum of Rs.1,00,000/- and agreed to pay her the balance of Rs.3,00,000/- in two installments and entered into a memorandum of understanding. Due to heavy loss in the business, the accused could not keep up his words and on demands made by the complainant, has issued 4 cheques of 3 Crl.A.No.1290/2018 different dates drawn on Canara Bank out of which 2 cheques each for a sum of Rs.1,00,000/- and another 2 cheques for Rs.50,000/- each assuring that the same will be honoured.
c) But, on presentation of the cheque No.696247 for a sum of Rs.1,00,000/- on 21.06.2017 and the other 3 cheques on 29.06.2017 for encashment, the same returned dishonoured with shara "payment stopped by the drawer".
d) In spite of issuance of legal notice dated 06.07.2017, the accused did not pay the cheques amount. Accordingly, the complaint was filed against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the NI Act").
4. The trial Court record reveals that on receipt of the complaint, the learned Magistrate was pleased to record the sworn statement of the complainant and on satisfaction, has taken cognizance and issued summons to the accused.
a) In response to the due service of summons, the accused put his appearance through his counsel and was enlarged on bail.
4 Crl.A.No.1290/2018
b) The plea of the accused was recorded for the offence punishable under Section 138 of NI Act for which he has pleaded not guilty and claimed to be tried.
c) Accordingly, the case was posted to lead evidence of the complainant. In response to which, the complainant herself has entered into the witness box as PW-1. Got exhibited 13 documents at Ex.P-1 to 13 and closed her side.
d) Statement of the accused under Section 313 of Cr.P.C. was recorded wherein the accused denied all incriminating evidence against him and submitted that he has defence evidence to lead. However, despite of sufficient time, since, the accused failed to lead his evidence, it was taken as nil. Thus, there is no independent defence evidence on record.
e) The learned Magistrate after hearing the arguments of both the sides on merits of the case and on going through the evidence on record, has passed the impugned judgment convicting the accused for the offence punishable under Section 138 of NI Act and sentenced accordingly.
5 Crl.A.No.1290/2018
5. Being aggrieved by the judgment of conviction, the accused has approached this Court with the following grounds;
a) The Judgment passed by the learned Magistrate is opposed in law and probabilities of the case and the entire judgment is one sided.
b) The learned Judge has imposed heavy fine and in default, to undergo simple imprisonment for 2 months and the said conviction is made by the trial Court is without proper mind.
c) Ex.P-1 to P-4 cheques were never issued directly by him to the complainant and the trial Court has wrongly mentioned in the judgment in page No.3, cheque bearing No.696249 is for sum of Rs.1,00,000/- instead of Rs.50,000/-.
d) The complainant is not a partner of his business and he along with her husband was doing business and in his absence, she used to look after the said business.
e) He having confidence and believing her husband had given full responsibility of cash and selling of the goods, but the husband of the complainant has made lot of 6 Crl.A.No.1290/2018 mischief and misused the funds and without his knowledge he used to take cash and used to give good articles on the credit basis to the customers and has made loss to the business and misused the funds and he having no knowledge about the business, retired from the said business.
f) He has engaged an advocate who is his relative and since she was the junior most has not conducted the case properly.
g) He is having good defence in his case and had explained his advocate that he never executed agreement at Ex.P-13 in favour of the complainant and in the said document, his signature is tampered by the husband of the complainant and his signature is not found on each page of the said document and he does not know the contents of Ex.P-13. As such, the complainant had concocted the document for the purpose of claiming the amount in the said case.
h) Even though there was lot of defence in his favour, his advocate failed to examine him before the Court and 7 Crl.A.No.1290/2018 failed to deny the agreement in between him and the complainant.
i) The complainant has not produced any partnership deed before the trial Court and she has not produced any document to show the payment of Rs.4,00,000/- to him and her husband has made lot of misuse of funds to join the business of provisions stores with him.
j) He used to keep some signed cheques in the shop to give the same to the suppliers after filling up the amount, on the basis of their bills. In his absence, the husband of the complainant has taken some of the blank signed cheques and filled the same with amount and name and to take revenge against him, has filed a false case and he has not issued the said cheques at Ex.P-1 to P-4 to the complainant directly and he is not the author of the contents made in the cheque.
k) He being an uneducated and having no knowledge of the business, only on the influence of the husband of the complainant, had invested huge amount on the business of provision stores and due to mis use of the funds by the 8 Crl.A.No.1290/2018 husband of the complainant, he became pauper and penniless.
l) Even though the entire story was disclosed to his advocate, she except denial, has not even suggested the facts and circumstances of the case to the complainant and did not examine him before the Court to defend his case.
m) The entire allegations made in the complaint, legal notice and sworn statement are denied as false, frivolous, concocted and created story to claim the huge amount from him and the complainant has not produced any document to show that she has invested a sum of Rs.4,00,000/- in the partnership business.
n) He had never agreed to pay a sum of Rs.4,00,000/- to the complainant on installments and the rent agreement at Ex.P-12 was not executed by him and the complainant did not examine Smt.Vishalakshi Raj to prove Ex.P-12.
o) In Ex.P-13, some of the witnesses are put their signatures and those witnesses were not examined to prove the document. As such, the entire story is created by 9 Crl.A.No.1290/2018 complainant and not proved her case and the trial Court came to the conclusion that the complainant substantiated that he has issued Ex.P-1 to P-4 in favour of the complainant in order to discharge the legally enforceable debt.
p) The trial Court has not furnished the free copy of the impugned judgment. Hence, he applied for certified copy on 21.06.2018 and the copy was delivered on 26.06.2018 and to engage his known advocate and since he was not available till 13.07.2018 and 14.07.2018 was second Saturday, his advocate filed the appeal on 15.07.2018 and prayed to condone the delay if any.
q) He has also prayed this Court to set aside the judgment of conviction and sentence passed and acquit him and remand the matter to trial Court in order to facilitate him to adduce his further defence and examine some of the witnesses on his behalf in the interest of justice and equity.
6. In response to due service of notice by this Court, the complainant/respondent put his appearance through his counsel and filed his counter 10 Crl.A.No.1290/2018 claim/objection/statement wherein narrating the facts of the case, he has challenged the order of sentence by raising the grounds that;
a) The trail Court erred in convicting the accused for lesser offence or imposing inadequate compensation.
b) The trial Court has failed to apply its mind to enhance the sentence of fine to twice the amount of the cheques.
c) The trial Court has failed to impose the sentence of fine in accordance with the provision of Section 357(3) of Cr.P.C.
d) There is no bar put on the Magistrate in respect of enhancement of the fine amount other than the cheque amount under Section 357(3) of Cr.P.C.
e) The trial Court ought to have grant the compensation to him double the cheque amount according to the principle of granting compensation. Hence, prayed to allow the appeal to an extent of modification of the impugned judgment and pass adequate compensation.
7. Secured the trial Court record.
11 Crl.A.No.1290/2018
8. Heard the counsels for both parties on merits. The counsel for appellant filed his written arguments along with xerox copies of the citations with list i.e.,
1. 2014(1) Crimes 66 (SC).
2. 2015 (1) Supreme Court Cases 99.
3. 2009(1) KCCR 5084.
4. 2012 Cr.L.J. NOC 491 (KER),
5. 2010(5) KCCR S.N. 435 and
6. 2019(5) Supreme Court Cases 418.
9. On the basis of the grounds made out, following points are arose for my determination.
1. Whether the appellant/accused proves the grounds urged by him in support of this appeal?
2. Whether the respondent/complainant proves that he can challenge the impugned judgment by filing counter objections?
3. If so, whether the respondent/complainant proves the grounds he has urged in support of his counter objections?
4. Whether the impugned judgment requires interference by this Court?
5. What Order?
10. My findings on the above points are answered in:
1) Point No.1 : Partly affirmative.
2) Point No.2 : Negative
3) Point No.3 : Does not survive for
consideration
4) Point No.4 : Affirmative
12 Crl.A.No.1290/2018
5) Point No.5 : As per final order for the
following reasons.
REASONS
11. POINT No.1:- The pleadings of the parties in the appeal memo, the cross objections and the trial Court record as well as the evidence on record demonstrate that the defence raised by the accused and the main ground urged by him in support of his present appeal is that the complainant and her husband in collusion has obtained the cheques fraudulently and misusing the same, has come up with the present false complaint.
12. In support of this ground, the reasons, he has assigned are;
a) he did not issue the cheques in question directly to the complainant.
b) the complainant was not his partner;
c) he and the husband of the complainant were doing provision stores business in partnership;
d) he believed the husband of the complainant and had confidence on him/the husband of the complainant; 13 Crl.A.No.1290/2018
e) he left the entire responsibility of the said business such as cash, sale of goods and etc., on the husband of the complainant who misused the same and committed mischief resulting in loss of the business and he having no knowledge in the business was retired;
f) he being an uneducated and having no knowledge of the business, only on the influence of the husband of the complainant, had invested huge amount on the business of provision stores and due to misuse of the funds by the husband of the complainant, he became pauper and penniless;
g) the complainant used to be in the shop/office of the partnership in the absence of her husband;
h) he used to keep the cheque book and other documents in the office/shop of the partnership business;
i) the complainant/her husband obtained the cheques from the cheque book so kept in the office/shop fraudulently and filling it conveniently, have come up with the present false complaint.
13. But, the trial Court record demonstrates that even in his statement under Section 313 of Cr.P.C., the 14 Crl.A.No.1290/2018 accused has stated that he will lead the defence evidence, despite of sufficient opportunities, since he did not let in any evidence on his behalf, it was taken as nil and even thereafter, no application was filed seeking permission to lead his defence evidence. Thus, there is no independent defence evidence on record.
14. Of course, in the cross examination of the complainant, it is elicited that the accused and her husband are friends and her husband does the financial business. She has denied the suggestion that the accused used to keep the cheque book and his documents in the partnership office/shop. But, there is no suggestion made to her with regard to the facts of the defence that the accused had no partnership with her and the partnership was with her husband.
15. On the other hand, it is elicited that the said partnership is not continued and the reason for non continuation of the partnership is that she had 7 months baby. At this stage, it is pertinent to note that it is the case of the complainant that because of her health and family maintenance, she could not continue in the partnership. 15 Crl.A.No.1290/2018 So, the reason she has assigned above is in support of her pleading.
16. It is also suggested that even the accused did not issue the cheques, as the said partnership was discontinued, by obtaining the cheques of the accused, this complaint was filed. Of course, the said suggestion is denied by the complainant. But, the suggestion indicates that the accused has admitted the partnership with the complainant.
17. At this stage, it is important to note that the accused has contended that he has not executed the rent agreement at Ex.P-12 and Smt.Vishalakshi Raj was not examined to prove Ex.P-12. It is apparent on the face of record that the above witness is not examined by the complainant to prove Ex.P-12.
18. But, the contents of Ex.P-12 demonstrate that it is a rent agreement wherein the lessee is "Shree A one Super Market" i.e. the partnership of the accused and the complainant and the partnership is represented in Ex.P-12 by both the complainant and the accused and it also bears their signatures.
16 Crl.A.No.1290/2018
19. So, prima facie, the recitals at Ex.P-12 are in support of the complainant. There is no cross examination to the complainant with regard to Ex.P-12. Admittedly, the accused did not let in any evidence. For that matter, he himself not even entered into the witness box. Hence, nothing is there on record to disbelieve the rent agreement at Ex.P-12 which supports the partnership of the accused with the complainant.
20. The only contradiction in the cross examination of the complainant is that, she has deposed that she gave the loan amount in the presence of her husband and the loan amount was paid in Rs.500/- and Rs.1,000/- face value currency. On the other hand, it is her case that the amount she paid to the accused is towards the investment for the partnership business.
21. Thus, the sum and substance of the evidence on record as of now, demonstrates that the partnership business was in between the accused and the complainant and was not in between the accused and the husband of the complainant as contended by the accused, as there is no whisper in that regard in trail Court record. 17 Crl.A.No.1290/2018
22. So far his habit of leaving the cheque book and the documents in the office; the complainant/her husband obtaining the cheques from such cheque book left in the office fraudulently; misusing the same and coming up with the present false complaint, of course the said defence is suggested to the complainant in her cross examination and she has denied the same and admittedly, the accused did not let in any supportive, corroborative and cogent evidence in support of this defence.
23. In support of his arguments, the learned counsel for the accused has relied on the citation reported in 2014(1) Crimes 66 (SC) (John K. Abraham versus Simon C. Abraham & Another in Criminal Appeal No.20423 of 2013 arising out of SLP (Crl.)No.9505 of 2011 decided on 05.12.2013), wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court to the effect that;
"Negotiable Instruments Act - Section 138 - Complaint alleging dishonour of cheque - Acquittal by the trial Court - Appeal - Conviction of appellant by High Court imposing the sentence to pay a fine of Rs.1,50,000/- as compensation under Section 357(1) of Cr.P.C. - Appeal - Respondent complainant was not aware of date when substantial amount of Rs.1,50,000/- was advanced by him 18 Crl.A.No.1290/2018 to appellant - Respondent complainant was not even sure as to who wrote the cheque - Apart from that respondent complainant was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by appellant - Apart from said serious lacuna in the evidence of complainant, he further admitted as PW-1 by stating once in the course of the cross examination that cheque was in the handwriting of accused and the very next moment took a diametrically opposite stand that it was not in the handwriting of accused and that it was written by complainant himself, by further reiterating ...........
24. But, in the present case on hand, as noted above, the accused did not let in any supportive evidence to substantiate his defence that he is not the author of the contents of the cheques at Ex.P-1 to 4. The accused did not enter into the witness box. He did not get referred the cheques at Ex.P-1 to 4 to the handwriting expert for his opinion. There is not even a suggestion to the complainant in this regard. Hence, the above decision is not helpful to the accused.
25. The next ground is that the trial Court has wrongly mentioned in the judgment in page No.3 that cheque bearing No.696249 is for sum of Rs.1,00,000/-
instead of Rs.50,000/-.19 Crl.A.No.1290/2018
26. The fact in this defence is apparent on the face of the impugned judgment. But, the total quantum of all the cheques amount taken in the judgment including the operative portion is Rs.3,00,000/- only. Hence, the wrong mention of the quantum of amount of the above cheque did not result in any material discrepancy.
27. The next ground is that he never executed agreement at Ex.P-13 in favour of the complainant and in the said document, his signature is tampered by the husband of the complainant and his signature is not found on each page of the said document and he does not know the contents of Ex.P-13. As such the complainant had concocted the document for the purpose of claiming the amount in the said case. No witnesses to Ex.P-13 are examined.
28. The plain perusal of the agreement at Ex.P-13 demonstrates that it bears the signature of the executant i.e. alleged to be of the accused only on the last/3 rd page and no attesting witnesses of Ex.P-13 are admittedly examined before the trial Court.20 Crl.A.No.1290/2018
29. So far the other facts in the above ground in respect of Ex.P-13, they are all subject to adjudication and admittedly, there is no cross examination to the complainant in that regard and the accused is not examined as well as the disputed signature was not referred to the handwriting expert.
30. The one more defence is that the complainant has not produced any partnership deed before the trial Court and she has not produced any document to show the payment of Rs.4,00,000/- to him.
31. It is apparent on the face of the trial Court record that the complainant has not produced the partnership deed. But, so for the document to show the payment of Rs.4,00,000/- to the accused, there is mention in the agreement at Ex.P-13.
32. But, as noted above, in the cross examination of the complainant, it is stated that since the said partnership was discontinued, getting the cheques from the cheque book the accused left in the office fraudulently and misusing the same, she has come up with this case and as noted above, in Ex.P-12/the rent agreement, the 21 Crl.A.No.1290/2018 partnership business i.e. Shree A-One Super Market" is represented by both the complainant and the accused and it also bears their signatures. Hence, as of now, as per the evidence on record, it is clear that now the accused cannot say that he had no partnership with the complainant.
33. The counsel for the accused has also relied on the decision reported in (2015) 1 Supreme Court Cases 99 (K.Subramani Vs K.Damodara Naidu in Criminal Appeal No.2402 of 2014 arising out of SLP (Crl.) No.6197 of 2014) decided on 13.11.2014) wherein he has drawn my attention to the observations of the Hon'ble Supreme Court to the effect that;
"Criminal Appeal No.2402 of 2014 decided on November 13, 2014 Debt, Financial and Monetary Laws - Negotiable Instruments Act 1881 - Ss. 138, 118 and 139 - Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant - accused - Presumption in favour of holder of cheque, hence, held, stood rebutted - Acquittal restored. ...... "
34. The other decision he has relied on is the decision reported in 2009(1) KCCR 508 (Sri.A.Vishwanatha Pai Vs Sri.Vivekananda.S.Bhat in Criminal Revision Petition No.172 of 2008 decided on 20.09.2008) wherein he has 22 Crl.A.No.1290/2018 drawn my attention to the observations of the Hon'ble High Court of Karnataka to the effect that;
"............ Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. The complainant has to prove the existence of legally recoverable debt payable to him by the accused as on the date of issuing of the cheque in favour of the complainant, the accused need not prove his defense version beyond reasonable doubt and it is sufficient if he brings on record by adducing his own evidence or by eliciting from the complainant and his witness that his defence is plausible and probable without getting himself examined as a witness.
In the present case, held, the complainant had not stated in his complaint or the statutory notice as to what was the exact date of lending of money to the accused. The complainant also failed to adduce any document or oral evidence to prove lending. Held, the materials on record probabilised the defense theory of misuse of cheque and the Court below erred in convicting the accused under Section 138 of NI Act."
35. The one more decision he has relied on is the decision reported in 2010 (5) KCCR SN 435 (B.Girish Vs S.Ramaiah in Criminal Appeal No.1371 of 2007 decided on 13.01.2010) wherein he has drawn my attention to the observations of the Hon'ble High Court of Karnataka to the effect that;
" .......... The defence of the accused was that cheque was not issued for discharge of any debt or liability.23 Crl.A.No.1290/2018
Admittedly, accused has no capacity to pay Rs.50,000/- nor he had any savings. No contemporary documents have come into existence. The Income tax Act requires that all transaction involving Rs.20,000/- and above should be through account payee cheque. Defence of accused is highly probable. Accused has rebutted presumption under Section 139, The acquittal is justified".
36. The other decision he has relied on is the decision reported in (2019) 5 SCC 418 (Basalingappa Vs Mudibasappa in Criminal Appeal No.636 of 2019 arising out of SLP (Crl.) No.8641 of 2018 decided on 09.04.2019) wherein he has drawn my attention to the observations of the Hon'ble Apex Court to the effect that:
" ........... B. Debt, Financial and Monetary Laws - Negotiable Instruments Act, 1881 - Ss. 139 and 138 - Rebuttal of presumption under Section 139 - If made out - Accused disputing financial capacity of complainant to pay amount and leading evidence to prove it - Held, accused led probable defence - Under such conditions, burden would be on complainant to establish his financial capacity, which he was unable to do - Hence, acquittal restored. ............"
37. But, in the case on hand, as noted above, most of his defence was admittedly not suggested to the complainant and the accused did not enter into the witness box. Hence, all the dictum rendered in all the above decisions are not helpful to him.
24 Crl.A.No.1290/2018
38. Of course, one of the grounds urged by the accused in support of this appeal is that he has engaged an advocate who is his relative and since she was the junior most has not conducted the case properly and even though there was lot of defence in his favour, his advocate failed to examine him before the Court and failed to deny the agreement in between him and the complainant.
39. But, it is important to note that the accused has engaged the counsel on his own choice. Hence, he cannot now blame the counsel. However, the plain perusal of the cross examination of the complainant demonstrates that it is conducted by an inexperienced lawyer.
40. In his written arguments, the counsel for accused has contended that the complainant has not produced the partnership deed and the said partnership was not registered under Section 4 of the Indian Partnership Act. The partnership deed shall be written and registered before the competent authority and mere statement that parties are to be partners will not necessarily to constitute them as partners.
25 Crl.A.No.1290/2018
41. So, before proceeding with the discussions on this ground, it is necessary to go through the above provision which is extracted here below;
"4. Definition of "partnership", "partner", firm"
and"firm name".- "partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.
Persons who have entered into partnership with one another are called individually "partners" and collectively a "firm", and the name under which their business is carried on is called the firm name".
42. It is also in his written arguments that Section 2 of the Indian Partnership Act using expression partners and without any document, no proof of partnership and further registration of partnership deed is condition precedent. No registration of firm under Section 32 of the Partnership Act, no suit or claim by an unregistered partnership deed is not maintainable.
43. So before proceeding further with, it is necessary to go through the above provisions which are extracted here below;
"2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,-26 Crl.A.No.1290/2018
(a) an "act of a firm" means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm;
(b) "business includes every trade, occupation and profession;
(c) "prescribed" means prescribed by rules made under this Act;
(d) "third party" used in relation to a firm or to a partner therein means any person who is not a partner in the firm; and
(e) "expressions used but not defined in this Act and defined in the Indian Contract Act, 1872 (9 of 1872), shall have the meanings assigned to them in that Act.
"32. Retirement of a partner.- (1) A partner may retire,-
(a) with the consent of all the other partners,
(b) in accordance with an express agreement by the partners, or
(c) where the partner is at will, by giving notice in writing to all the other partners of his intention to retire.
(2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be impleaded by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.
(3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement;27 Crl.A.No.1290/2018
Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a partner.
(4) Notices under sub-section 9(3) may be given by the retired partner or by any partner of the reconstituted firm.
44. It is also in the written arguments that the complainant has not produced the dissolution of the partnership deed. As such, no suit to enforce a right arising from the contract or referred by this Act shall be instituted in any Court by or on behalf of the person suing as a partner that unless firm is registered.
45. It is also in the written arguments that under Section 69(2), no suit or claim to enforce a right from the contract shall be instituted in any Court or on behalf of firm or any third party unless the partnership is registered and the person sues are shown in the Register of Firms as parties in the firm.
"69. Effect of non-registration.- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing or has been shown in the Register of Firms as a partner in the firm.28 Crl.A.No.1290/2018
(2) No suit to enforce a right arising form a contract shall be instituted in any by or on behalf of a firm against any third party unless the firm is registered and the persons using are or have been shown in the Register of Firms as partners in the firm.
(3) the provisions of sub-sections (1) and (2) shall apply also to a claim of set off or other proceeding to enforce a right arising from a contract, but shall not affect,-
(a) the enforcement of any right to sue for the dissolution of a firm or for account of a dissolved firm, or any right or power to realize the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidency - towns Insolvency Act, 1909 (3 of 1909), or the Provisional Insolvency Act, 1920 (5 of 1920), to realize the property of an insolvent partner.
(4) this section shall not apply.-
(a) to firms or to partner in firms which have no place of business in (the territories to which this Act extends), or whose places of business in (the said territories), are situated in area to which, by notification under (section
56), this Chapter does not apply or
(b) to any suit or claim of set off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), or outside the Presidency Towns, is not of a kind specified in the Second Schedule to the Provisional Small Causes Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim".29 Crl.A.No.1290/2018
46. So, the plain reading of the above provisions in particularly Sections 32 and 69 of the Indian Partnership Act clearly demonstrate that there are some mandatory things to be complied by the partner who intends to retire from the firm and unless other wise the firm is registered and the person sues is shown as partner in the register of firms, he has no right to file any suit or to make any claim in the capacity of a partner of the firm.
47. The trial Court record demonstrates that this defence was not raised by the accused before the trial Court. But, since it is question of law these points are required to be gone into and to give findings on them. Of course, this Court can do this exercise, but it is important to note that, the findings of this Court on this issue being an appellate Court which is not dealt by the trial Court, the aggrieved party will loose the right of first appeal about the findings if any of this Court on this issue.
48. Hence, in view of fact apparent on the face of record that the accused was represented before the Court by an inexperienced advocate and thereby to give a fair opportunity of trial to the accused to defend the case and 30 Crl.A.No.1290/2018 in view of the above observations that the question of law involved in the case on hand with regard to the right of the complainant to claim as a partner of the alleged partnership between her and the complainant which needs consideration and findings, it appeared that the matter needs to remand for consideration afresh. Hence, point No.1 is answered in partly affirmative.
49. POINT No.2:- As noted above, the complainant has filed his counter objections with the grounds seeking modification of the impugned order with adequate compensation.
50. But, the provision of Section 374 of Cr.P.C. which deals with appeals from convictions does not provide any such provision i.e. to file counter objections as it is provided in Order XLI Rule 22 of C.P.C. to file cross objections/cross appeal.
51. The counsel for complainant has not brought any order/circular/notification/decision to my notice to substantiate his right to file counter objections in this appeal filed by the accused.
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52. Thus, under the provision of Section 374 of Cr.P.C., the complainant is required to file separate appeal for his grievance. Accordingly, this point is answered in negative.
53. POINT No.3:- In view of answering point No.2 in negative, this point does not survive for consideration. Accordingly, this point is answered.
54. POINT No.4:- In view of answering point No.1 in partly affirmative and holding that the matter needs remand for fresh trial, the impugned judgment needs intervention by this Court. Accordingly, this point is answered in affirmative.
55. POINT No.5:- For the reasons discussed above, I proceed to pass the following order.
ORDER The Criminal Appeal filed by the appellant under Section 374(3) of Cr.P.C. is hereby allowed.
Consequently, the Judgment of conviction and sentence passed by the XXII ACMM, Bengaluru in CC.No.19837/2017 dated 15.06.2018 is hereby set aside and the learned Magistrate is directed to dispose of the case afresh by giving opportunities to both the parties.
Both the parties are directed to appear before the learned Magistrate to receive further orders without fail on 32 Crl.A.No.1290/2018 10.08.2020 without expecting any notice from the trial Court and to extend their co-operation for disposal of the matter as expeditiously as possible.
Send TCR along with the copy of this judgment forthwith to the trial Court.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 30th day of July 2020).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bangalore.
33 Crl.A.No.1290/2018Both the parties and their respective counsels are absent.
The Order is pronounced in the open Court (vide separate Order).
ORDER The Criminal Appeal filed by the appellant under Section 374(3) of Cr.P.C. is hereby allowed.
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Consequently, the Judgment of conviction and sentence passed by the XXII ACMM, Bengaluru in CC.No.19837/2017 dated 15.06.2018 is hereby set aside and the learned Magistrate is directed to dispose of the case afresh by giving opportunities to both the parties.
Both the parties are directed to appear before the learned Magistrate to receive further orders without fail on 10.08.2020 without expecting any notice from the trial Court and to extend their co-operation for disposal of the matter as expeditiously as possible.
Send TCR along with the copy of this judgment forthwith to the trial Court.
LXVI Addl.CC & SJ, Bangalore.