Delhi District Court
Shri Vijay Kumar Gupta vs Vraj Lal Mani Lal & Company on 23 December, 2014
IN THE COURT OF SH.ATUL KUMAR GARG, ASJ - 03,
CENTRAL, TIS HAZARI COURTS: DELHI
CA No. 24/12
Ashok Kumar Gupta and others
607/23, D.L.F. Colony,
Rohtak.
Shri Vijay Kumar Gupta,
607/23, D.L.F. Colony,
Rohtak. ....Appellants.
VERSUS
Vraj Lal Mani Lal & company
544- Lahori Gate,
Delhi 110006
Through Shri Ratti Lal Shah
Constituted Atoorney ....Respondents
Date of institution : 02.07.2012
Date of arguments : 27.10.2014
Date of Decision : 23.12.2014
CA No. 51/12
M/s Mathura Prasad & Sons,
Through its Partner/ Partners'
Shri Anil Kumar Gupta,
Railway Road, Rohtak.
Smt. Shakuntla Devi (Partner)
607/23, D.L.F. Colony, Rohtak.
CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co.
CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.1
Shri Anil Kumar Gupta (Partner),
607/23, D.L.F. Colony,
Rohtak.
Shri Sunil Kumar Gupta (Partner),
607/23, D.L.F. Colony,
Rohtak.
Shri Manoj Kumar Gupta (Partner),
607/23, D.L.F. Colony,
Rohtak ....Appellants
VERSUS
Vraj Lal Mani Lal & company,
544-Lahori Gate,
Delhi 110006,
Through Shri Ratti Lal Shah,
Constituted Attorney ....Respondents
Date of institution : 28.06.2012
Date of arguments : 27.10.2014
Date of Decision : 23.12.2014
JUDGMENT
1. Vide this composite order, I shall dispose of two appeal arising out of the judgement and order on sentence dated 24052012 and 04062012 passed CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.2
by Ld. Metropolitan Magistrate in complaint case No. 449/01 whereby Ld. Magistrate convicted the appellants for the offense punishable under Section 138 of Negotiable Instrument Act (herein after referred as an Act) and sentenced them to undergo one year simple imprisonment besides paying the compensation of Rs. 2,80,000/ which is to be paid by them jointly as well as severally.
2. Appeal No. 51/2012 was filed by M/s Matura Das and Sons, Smt. Sakuntala Devi, Sh. Anil Kumar Gupta, Sh. Sunil Kumar Gupta and Manoj Kumar Gupta, stating that the Trial court has failed to appreciate that respondent/Complaint firm is unregistered and not registered in any law having no legal entity in the eyes of law. The Ld. Trial Court CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.3
has failed to appreciate that appellants No. 2 & 4 are sleeping partners of M/s Mathura Das and Sons whereas Sh. Anil Kumar and Vijay Kumar has resigned from the partnership deed at the time of commission of the offense. Trial Court has failed to appreciate that there exists no liability at all of the appellants/accused persons. Respondents/complaint has failed to produce any bill or invoice on record to prove the liability of the accused persons as well as of M/s Ram Chand Gupta & Company. The impugned cheque in question was issued as security to the respondent/complaint and not in lieu of any due liability. Ld. Trial Court has failed to consider the case laws cited by the appellants in support of their submissions. Ld. Trial Court has relied on the CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.4
unregistered partnership deed but at the time of giving benefit of doubts Trial Court did not consider the dissolution deed dated 31081999 Ex. DW2/A & B. Ld. Trial Court has failed to appreciate that Sh. Rati Lal alleged partner has only given self serving statements and also not produced any documentary evidence to show that he was an employee of the respondent and have an authorization to depose and to file the complaint. Further, these appellants submit that order of the Trial Court be recalled and set aside.
3. The stand of the appellant Sh. Ashok Kumar Gupta and Vijay Kumar Gupta in Criminal appeal No. 24/2012 is that they had already left the partnership firm vide dissolution deed dated 31081999. CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.5
Therefore, liability can not be fastened on any of them. However, they had also pleaded those pleas which have been raised by remaining appellants in their appeal bearing No. 51/2012. They submit that order be setaside and order be recalled and accused be discharged.
4. Upon filing of appeal, Trial Court's record was summoned and notice were issued to the respondents.
5. As per Trial Court's record the respondents herein has filed the criminal complaint under Section 138 R/w Section 142 of the Act against Mathura Prasad and Sons and its six partners namely Smt. Smt. Sakuntala Devi, Sh. Vijay Kumar, Sh. Anil Kumar Gupta, Sh. Sunil Kumar Gupta and Manoj Kumar CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.6
Gupta, making averments that the complainant had its business dealing with M/s Ram Chand Gupta and Company at Gohana and complainant has running account with him of the above said firm. During the period from 01042001 to 03052001 M/s Ram Chand Gupta and Company had purchased Biri from the said complainant. Complainant claims to have a sum of Rs. 1,70, 794/ owed towards the Ram Chand Gupta & Company at Gohana. M/s Mathura Prasad & Sons took the responsibility being common family concerned and issued a cheque for a sum of Rs. 1,40,000/ in the name of complainant firm vide their covering letter dated 17042001. When that cheque, signed by Sh. Anil Kumar partner of the said firm, was deposited in the Bank, the same was CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.7
returned back " Payment Stopped by drawer", hence he filed the complaint after completing the formalities.
6. Trial Court after finding a Primafacie case had summoned all the accused person vide order dated 03042002. Vide order dated 07092012, all the accused persons were given notice for the offence punishable Under Section 138 of Act. All the accused pleaded not guilty and claimed trial and thereafter the respondent herein had examined three witnesses namely Sh. O.P. Bharti, Sh. Sanjay Aneja and Sh. Rati Lal Shah as CW1, CW2 & CW3 respectively. All the accused were also examined under Section 313 Cr.PC. They claimed innocence and false implication. Accused Manoj Kumar Gupta had stated that cheque CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.8
in question was issued to the complainant towards advance payment but after receiving the payment the complainant failed to supply the goods. Sh. Sunil Kumar Gupta accused claim that he was sleeping partner in the firm. Accused Sh. Anil Kumar Gupta stated that cheque in question was issued to the complainant towards advance payment but after receiving the payment the complainant failed to supply the goods. Accused Vijay Kumar Gupta and Ashok Kumar stated that they were not partner. In the firm and hence, they were not liable to make payment. Accused Smt. Sakuntala claimed to be sleeping partner in the firm. Accused person had examined themselves as defense witnesses.
7. Trial Court, after hearing the arguments, CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.9
convicted all the accused person for the offense punishable under Section 138 of Act and sentenced them to under go one year simple imprisonment and sentence them barring Sakuntala Devi to undergo one year simple imprisonment for one year. All the convicts are liable to pay the amount of cheque in question as a compensation jointly as well as severally to the complainant as per Section 143 (1) (Proviso) NI Act r/w 357 (1) (3) of Cr.PC. The appellant Shakuntala Devi was sentenced to undergo simple imprisonment for four months.
8. Against the impugned judgement dated 24.05.2012 and sentence dated 04.06.2012 respectively, appellants had filed two appeals bearing no. 24/2012 and 51/2014. The appeal bearing no. CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.10
24/2012 has been filed by the Ashok Kumar Gupta and Vijay Kumar Gupta who claims that they had resigned from the partnership on 31.08.1999 while other partners namely Vijay Kumar Gupta, Sunil Kumar Gupta, Ashok Kumar Gupta, Shakuntla Devi, anil Kumar Gupta and Manoj Kumar had taken the stand that they had no liability and appellants no. 2 and 4 had taken the plea that they are the sleeping partner in the firm M/s Mathuradas and sons. While the respondent case is that all the appellants are the partners of the M/s Mathura Prasad and ors. and one of the partner Anil Kumar had issued the cheque in favour of the respondent in lieu of the discharge of the liability of the sister concerned of the partnership of the Mathura Prasad & Sons namely Ram Chandra CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.11
Gupta and Co. at Guhana. According to the complainant Ram Chandra Gupta had closed down all the partnership. M/s Mathura Prasad & Ors. had taken the liability of his sister concern.
9. I have heard the arguments on behalf of the both the appellants and respondents. It is an admitted case that the cheque in question was issued by Anil Kumar being the partner of M/s Mathura Prasad & Ors. in lieu of the discharge of the liability of Ram Chandra Gupta. The appellants had not challenged the documents Ex. CW 1/5 and Ex. CW 1/6. CW 1/5 is a covering letter signed by Anil Kumar and CW 1/6 is the return memo.
10. Now the question is whether Anil Kumar is solely liable for the offense punishable U/s 138 of the CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.12
Act or all the partners are liable jointly as well as severally. Section 141 of the Act provides the procedure of the offense committed by the company. Section 141 of the Act is required to be reproduced herein.
"141. Offences by companies if the person committing an offence under section 138 is a company, every person, who, at the time of offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this subsection shall render any person liable to punishment if he proves that the offnece was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
[Provided further that where a person nominated as a Director of a company CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co.CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.13
by virtue of his holding any office or employment in the Central government or State Government or the State Government, as the case may be, he shall not be liable for prosecution under this chapter.] (2) Notwithstanding anything contained in subsection (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
Sub clause 2 of the explanation of Sub Section 2 of Section 141 of the Act state that the director in relation to a firm, means partner in the firm. Section 4 of the partners Act defines the word 'partnership'. CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.14
The liability of partners are jointly as well as several. Meaning thereby that each of the partner is liable for the act of another also. Complainant had specifically mentioned in his complaint that all the partners are responsible for the day to day affairs of the partnership of Mathura Prasad and Sons. Here in the present case the Anil Kumar Gupta had issued the cheque in lieu of the discharge of the debt of the another partnership being the partner of Mathura Prasad and Sons.
11. If we go through the evidence of CW3 then it appears that he had impleaded the respondent no. 1 and its partners in this complaint. Each partner is liable for the act of another. The cheque in question was issued and singed by Anil Kumar Gupta on behalf CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.15
of partnership firm. When the partnership firm had owed the debt of another firm and issued the cheque for discharge of the debt, then it is presumed that the said act of owing the debt has been deemed to be done by the partnership firm and each of the partner is liable for the act. The arguments that in the firm some partners are the sleeping partners is not tenable because outside world does not know who is the sleeping partner or who is active partner. Another leg of argument that the appellant Ashok Kumar Gupta and Vijay Gupta has been resigned from the partnership is also plausible. There is no communication of any kind that Ashok Kumar Gupta and Vijay Gupta had resigned from the partnership.
12. In view of the discussion, I find no merit in both CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.16
the appeals. Consequent there to, both the appeals filed by the appellant stand dismissed. Judgement dated 24.05.2012 passed by Ld. Magistrate is affirmed. However the sentence dated 04.06.2012 passed by the Ld. Magistrate is modified to the extent that appellants are liable to pay the compensation of double the amount of the cheque in question within ten days to the compensation in the form of bank draft. In case they fails to pay the compensation within the stipulated time, they shall undergo the sentence passed by the Ld. Trial Court for one year simple imprisonment.
Announced in the Open Court On 23rd December, 2014 (Atul Kumar Garg) Addl. Sessions Judge-03 (Central), Tis Hazari Courts CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.17 CA no. 24/12 & 51/12 Ashok Kumar Gupta Vs Vraj Lal Mani Lal & Company & M/s Mathura Prasad & Sons Vs Vraj Lal Mani Lal & Company. 23.12.2014 Present : All the appellants in both the appeals are present in person.
Attorney of the respondent is present. Vide my composite order announced in the open court, both the appeals filed by the appellant are dismissed. TCR is sent back alongwith the copy of this order. Both the appeal files are consigned to Record Room. Copy of this order is placed in each of the file.
(Atul Kumar Garg) ASJ-03 (Central)/Delhi CA No.24/12 Ashok Kr. Gupta etc. Vs. Vraj Mani Lal & Co. CA No. 51/12 M/s Mathura Pd.& Sons Vs. Vraj Mani Lal & Co. Page No.18