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2019 Supreme(Kar) 1321
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.A. PATIL, J.
Smt. Prabhavathi K.R Wife of Late Muniraju & Ors. - Petitioners
Vs.
Sri. Lokesh Son of Sri Thirumalappa - Respondent
Criminal Revision Petition No.219 of 2019
Decided On : 12-11-2019
For the Petitioner: Sri. B.A. Belliappa, Adv.
For the Respondent:Smt. Shwetha Ravishankar, Advocate
Headnote:
Criminal Procedure Code,1973 – Section,313(1)(b) - Partnership Act - Section 3 - Discretionary jurisdiction- Demand for payment of said amount - Court heard matter and after hearing both parties counsel for petitioners-accused on instruction of his client submitted that he is agreeable to settle case for a sum in full and final settlement counsel for respondent-complainant submitted that she will consult her client and as such case has been posted today for reporting settlement case of complainant as contended by him before Court below is that complainant and accused were known to each or and in month accused approached complainant for a hand loan agreeing to repay same - Accordingly complainant paid said amount to accused and accused issued a post –Held, Case it is aptly applicable to present of case- In that light without making Company a party complaint is not maintainable- No doubt or contentions which have been taken up by accused has not rebutted presumption drawn as contemplated Section is concerned it can be safely that though primary aspect has been proved to show that re exists a liability accused has admitted signature on cheque and burden shifts on to accused to rebut said presumption- But however when basic ingredients have not been established to take cognizance of case and y have not been proved as contemplated law n such circumstances not rebutting presumption will not come to aid of complainant so as to take advantage trial Court as well as first appellate Court has not applied mind of NI and has erroneously come to wrong conclusion Court was right in reversing concurrent factual findings of trial Court and of appellate Court in exercise of its revisional jurisdiction questions of law which rise in this appeal are Court can in exercise of its discretionary jurisdiction interfere with an order of conviction in absence of any jurisdictional error or error of law and payee of a cheque is disentitled to benefit of presumption under Section Negotiable Instruments Act of a cheque duly drawn having been issued in discharge of a debt or liability only because he is in a fiduciary relationshipwith person who has drawn cheque – Order accordingly
ORDER :
The present revision petition has been filed by the petitioner-accused Nos.1 and 2, challenging the judgment passed by LXXII Additional City Civil and Sessions Judge at Mayo Hall, Bengaluru in Criminal Appeal No.25180/2018 dated 17.01.2019 wherein the appeal preferred by the petitioners-accused was dismissed by confirming the judgment of conviction and order of sentence passed by LVII Additional Chief Metropolitan Magistrate, Mayo Hall unit, Bengaluru in C.C.No.53439/2015 dated 18.09.2018.
2. I have heard the learned counsel for the petitioners-accused and the learned counsel for the respondent-complainant.
3. Though this case is listed for orders on Interim application, with the consent of the learned counsel for the parties the same is taken up for final disposal.
4. This Court heard the matter on 11.11.2019 and after hearing both the parties, the learned counsel for the petitioners-accused on the instruction of his client submitted that he is agreeable to settle the case for a sum of Rs.4,00,000/- in full and final settlement. The learned counsel for the respondent-complainant submitted that she will consult her client and as such, the case has been posted today for reporting the settlement.
5. Both the counsel are present today along with their parties and they submitted that the matter has not been settled amicably between the parties, in that light, I have heard the learned counsel appearing for the parties in detail.
6. Before going to take up the contentions of learned counsel appearing for the parties, in nutshell the case of the complainant as contended by him before the Court below is that the complainant and accused were known to each other and in the month of July 2014, the accused approached the complainant for a hand loan of Rs.8,00,000/- agreeing to repay the same on 29/12/2014. Accordingly, the complainant paid the said amount to the accused on 28.07.2014 and the accused issued a post dated cheque bearing No.595855 dated 29.12.2014 drawn on ICICI Bank for Rs.8,00,000/- and the said cheque belongs to the firm of accused namely M/s. Panchamukhi Enterprises. When the said cheque was presented through his bankers, the same has been returned without encashing on 10.03.2015 with a share “Account Closed”. Thereafter, the complainant caused a legal notice to the accused on 26.03.2015 calling upon him to pay the cheque amount and it is contended that the said notice has served on 31.03.2015. Inspite of service of notice the accused did not pay the cheque amount and as such he filed a complaint.
7. The learned Magistrate took the cognizance and secured the presence of the accused. The plea of the accused was recorded. The accused pleaded not guilty and claimed to be tried. As such, the trial was fixed.
8. In order to prove the case of the complainant, he got examined himself as PW.1 and got marked Exs.P.1 to P.6. Thereafter, the statement of the accused was recorded under Sec.313(1)(b) of Cr.P.C and the accused examined himself as DW-1 and got marked documents at Ex.D1 to D12. Thereafter, after hearing the learned counsel appearing for the parties, the trial Court convicted the accused. Being aggrieved by the same, the accused preferred an appeal and the order of the trial Court was confirmed and the appeal was dismissed. Challenging the same, the accused is before this Court.
9. The main grounds urged by the learned counsel appearing for the petitioners-accused are that both the Courts below have grossly erred for having not appreciated the fact that, in the absence of the firm, being made a party, the complaint is not maintainable under Section 141 of Negotiable Instruments Act (herein after it is called as “NI Act” for short). It is his further submission that the conviction of the partners of the firm without making the company/firm is bad in law and want of compliance under Section 141 of NI Act is must. In order to Substantiate his said contention, he has relied upon the decision in the case of Aneeta Hada Vs. Godf
