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2007(4) Kar. L.J. 489
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
H.V.G. RAMESH, J.
J. RAMARAJ - Appellant
Versus
ILIYAZ KHAN - Respondent
Criminal Revision Petition No. 597 of 2004 connected with Criminal Revision Petition Nos. 598 and 599 of 2004.
Decided on : 27th October, 2006
CASES REFERRED:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183;
Dishonour of Cheque - Presumption and burden of proof - Cheque issued duly signed by accused -Presumtion operates against him -Mere denial would not suffice -If cheques were obtained by threat and coercion, same should be proved by him.
CASES REFERRED:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183;
Burden of Proof -Dishonour of cheque -Denial of issue of cheque - Burden on accused. See Negotiable Instruments Act, 19881 -Sections 138 and 139.
CASES REFERRED:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183;
Negotiable Instruments Act, 1881 - Sections 138 & 139 -Presumption under and burden of proof - Cheque issued duly signed by accused -Presumtion operates against him -Mere denial would not suffice -If cheques were obtained by threat and coercion, same should be proved by him. [H. V. G. Ramesh, J.]: Mere denial of issuing cheques would not be sufficient as it is time and again noted that once the cheque is issued duly signed by the petitioner, the presumption goes against him as per S.139 of the Negotiable Instruments Act. In so far as discharge of initial burden on the part of the complainant is concerned, he has specifically stated as to supply of potatoes on various dates but, the details of the same has not been furnished which is the only grouse according to the petitioner. But, according to practise, as a Commission Agent when the complainant used to supply the goods through the possession of the farmers, on commission basis and if it is kept in cold storage and supplied to the accused directly as noted by the learned Magistrate, there would not be any record available in the APMC for having supplied the potatoes to the petitioner. If really the petitioner was serious, he would have sought the complainant to produce the records in this regard and the account books maintained by him nor has he himself produced any account books maintained by him in his regard. It appears as an alternative defense, petitioner has tried to shift the burden stating that it is the company which is the Principal and the petitioner is only a commission agent and relying upon S.28 of the Negotiable Instruments Act, contended that the principal is liable and not the commission agent. In this regard, the petitioner has also sought the assistance of various provisions under the Negotiable Instruments Act to stand by his contention that primarily the principal is liable and not the agent. Even as per S.14l of the Negotiable Instruments Act, the petitioner being an agent who had transacted the business on behalf of the company and much less he is signatory to the cheque renders himself liable and shall be liable to be proceeded against. It is well settled that company alone or the person in charge of business of company alone or both can be prosecuted for offence under S.138 of the Negotiable Instruments Act.
Cseas Referred:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183;
Agency - Contract of - It does not necessarily convey meaning that primarily principal alone could be proceeded against and not agent. See, Indian Contract Act, 1872 - Section 222.
Negotiable Instruments Act, 1881 -Section 28 -Agent -Liability of. [H. V. G. Ramesh, J.]: The agent will be liable in the absence of any such endorsement being made and also when he fails to establish that he has been induced to sign the cheques on the assurance that the complainant will only proceed against the principal and not against the petitioner/agent. The finding of both the Courts below that the petitioner did not discharge his responsibility by way of rebuttal evidence cannot be faulted with.
Cases Referred:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183
Indian Contract Act, 1872 -Section 222 -Agency -Contract of - It does not necessarily convey meaning that primarily principal alone could be proceeded against and not agent. [H. V. G. Ramesh, J.]:In so far as contract of agency is concerned, might be the principal is liable for the act of the agent. S.222 of the Indian Contract Act, 1872 provides that the agent can be indemnified against consequences of all lawful acts and for which the principal is liable. If the agent wants to take the shelter that it is the principal who is liable and not the agent and of course, for his acts or breach committed by him, the principal would be liable, but it does not necessarily convey the meaning that primarily the principal alone could be proceeded with and not against the agent. More over, there are certain obligations cast upon the agent as duties towards the principal. As is well settled, the principal is liable for all lawful acts of the agent. Dilatory Settled Principles:Knowledge of agency to other party does not free the agent from liability, if he does not disclose on the instrument that he signed as an agent. The principle is that unless the maker has clearly affixed his signature to the instrument as agent or on account of or on behalf of a principal whose name is disclosed or, unless those he has signed unconditionally, he has unequivocally and clearly disclaimed in some portion of the document his own responsibility and mentions the name of the person really liable, he cannot escape liability (AIR 1992 SC 183).
Cseas Referred:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183.
Dishonour of Cheque - Presumption and burden of proof - Cheque issued duly signed by accused -Presumtion operates against him -Mere denial would not suffice -If cheques were obtained by threat and coercion, same should be proved by him.
Cases Referred:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183.
Negotiable Instruments Act, 1881 - Section 28 - Agent - Liability of. [H. V. G. Ramesh, J.]: the agent will be liable in the absence of any such endorsement being made and also when he fails to establish that he has been induced to sign the cheques on the assurance that the complainant will only proceed against the principal and not against the petitioner/agent. The finding of both the Courts below that the petitioner did not discharge his responsibility by way of rebuttal evidence cannot be faulted with.
Cases Referred:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183.
Dishonour of Cheque - Presumption and burden of proof - Cheque issued duly signed by accused -Presumtion operates against him -Mere denial would not suffice -If cheques were obtained by threat and coercion, same should be proved by him.
CASES REFERRED:ILR 2001 KAR 101;2001 (1) KCCR 437;2001 Crl.L.J 745;AIR 1992 Mad 183;1997 Crl.L.J 3616; AIR 1968 SC 1393;AIR 1961 SC 1316;AIR 1988 Cal 59;AIR 1999 SC 1008;AIR 1992 SC 183;
These three revisions have been filed by the petitioner being aggrieved by the orders passed by the Principal Sessions Judge, Kolar in Cr. A. Nos. 99, 98 and 100 of 2003, wherein the learned Sessions Judge dismissed the appeals while confirming the order of the learned Magistrate in convicting and sentencing the accused/petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. As it transpires from the records, complaint was filed under Section 200 of Cr. P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act against the petitioner herein stating that the complainant/respondent is a commission agent dealing in supply of potatoes on commission basis wherein the accused/petitioner used to place orders for supply of potatoes, as per the request and requirement, the complainant used to supply potatoes to the accused/petitioner as and when required. Further, during the month of July and August 2001 the accused/petitioner purchased potatoes worth Rs. 10 lakhs, Rs. 5 lakhs and Rs. 10 lakhs respectively on different dates and in lieu of discharge of the debt he issued three cheques bearing Nos. 145810, 145809 and 145811, dated 28-7-2001, 16-7-2001 and 6-8-2001 respectively drawn on Tamil Nadu Mercantile Bank Limited, Tuticorin. According to the complainant/respondent, while issuing cheques the petitioner had assured that he has got sufficient funds in his account. Later, petitioner requested him to present the cheques after 15-9-2001 as there was shortage of funds in his account, as such, the complainant presented those cheques subsequent to 15-9-2001 and the said cheques were returned on 29-9-2001 for want of sufficient funds and thereby the three cheques were dishonoured. Thereafter, on 12-10-2001, the complainant got issued a legal notice to the petitioner. The notice was sent through registered post as well as through certificate of posting by demanding the payment of amount. Further stating that petitioner neither paid the amount nor replied to the legal notice, the complainant filed three separate complaints in respect of three cheques before the Judicial Magistrate First Class, Kolar. Subsequently, the accused/petitioner put his appearance and contested the case. The learned Magistrate while dealing with the three cases independently after having held the trial convicted the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 3,000/-, in default to pay the fine, to undergo S.I. for another three months. Accused was also directed to pay compensation of Rs. 10 lakhs each in respect of two cheques and Rs. 5 lakhs in respect of one cheque. As against the said orders, appeals were preferred before the Principal Sessions .Judge, Kolar, who in turn, after hearing the parties, while confirming the order of the learned Magistrate, dismissed the appeals. Hence, these revisions by the petitioner.
3. Heard the Counsel for the petitioner and the Counsel representing the respondent in all the cases. Since the parties are common, all the three matters are taken together for disposal.
4. It is the submission of the learned Counsel for the petitioner that no such transaction has taken place in the market yard. Admittedly, the complainant is a commission agent, when such being the case he should have shown the proof of having supplied the potatoes from the market yard. Even as per the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966, the complainant has not maintained any accounts for having supplied potatoes to the accused and that he has not paid the tax due to APMC and procuring the goods outside the market yard cannot be believed. Further submitted that the cheques have been signed by the petitioner as an agent of the company and as per Section 28 of the Negotiable Instruments Act, the petitioner cannot be made liable for the supply
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