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2019 Supreme(Bom) 708
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
M.G. GIRATKAR, J.
Vinodkumar - Appellant
Versus
Baheti Automobiles - Respondent
Criminal Revision Application No. 175 of 2017, 114, 153 of 2015; Criminal Appeal No. 380 of 2014
Decided On : 26-04-2019
M.G. Sarda, Adv., A.C. Dharmadhikari, Adv., H.D. Dubey, Adv., S.V. Sirpurkar, Adv.
Headnote:
Negotiable Instruments Act – Section 138 – Code of Criminal Procedure, 1973 – Section 313 – Business Transaction – Payment – Complaint case was filed by Vinodkumar Bhagchandji Rathi against M/s. Baheti Automobiles and others alleging that accused No.1/Firm is constituted by its partners namely accused Nos.2 to 4. – There was business transaction between the complainant and the accused persons. – Whenever the complainant had an amount with him, he used to keep the said amount deposited with accused persons. – In the year 2006-07, the complainant had deposited an amount of Rs.22,00,000/- with accused under different cheques of Rs.1,00,000/- each. – Accused agreed to pay the interest on amount of deposit at the rate of 24 per cent per annum. – In the year 2006-07, accused repaid entire amount along with interest. – Held, Court have already come to the conclusion that the judgment of JMFC is perfectly legal and correct. – First appellate Court has wrongly interpreted the judgment in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra). – Learned Additional Sessions Judge has recorded his findings that accused No.1/Firm is not convicted and, therefore, judgment of JMFC is illegal. – The ratio laid down by the Honble Apex Court in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra) is that the firm/company should be an accused in the case under Section 138 of the Negotiable Instruments Act and the partners/directors are vicariously liable for the act of firm/company. – The judgment in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited (cited supra) nowhere says that the firm should be convicted and sentenced to jail. – The complainant has made firm as accused No.1 in the complaint itself. Learned JMFC has recorded his findings in para 51 that the complainant has proved that offence is committed by accused No.1/Firm. – However, failed to prove that accused Nos.3 and 4 are vicariously liable for the act of accused No.1/Firm because accused Nos.3 and 4 were not the acting partners of the firm. – Therefore, it is clear that accused No.2 issued cheques (Exhs.146 and 147) on behalf of accused No.1/Firm towards discharge of legal debt and liability. Therefore, accused No.2 was held guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. – Accused No.2 was managing the affairs of accused No.1/Firm. – He himself has signed the cheques (Exhs.146 and 147). – The said cheques were not encashed. Therefore, accused No.2, who was managing the affairs of the firm, is vicariously held liable. – In view of the judgment of Apex Court in the case of S.M.S. Pharmaceuticals Ltd. .v. Neeta Bhalla and another (cited supra), all accused cannot be convicted. – The accused who was managing the affairs of the firm is responsible for the act of the firm. – The judgment of learned JMFC is perfectly legal and correct – Criminal Appeal Dismissed
M.G. GIRATKAR, J.
1. All the matters are arising out of the judgment and order dated 18th August, 2015 passed by the learned Additional Sessions Judge No.3, Akola in Criminal Appeal No. 120 of 2013 by which the judgment and order dated 29th November, 2013 passed by the learned Judicial Magistrate, First Class, Court No.6, Akola in SCC No. 5113 of 2008 was set aside and remanded the matter to the trial Court for retrial.
2. The complaint case was filed by Vinodkumar Bhagchandji Rathi against M/s. Baheti Automobiles and others alleging that accused No.1/Firm is constituted by its partners namely accused Nos.2 to 4. There was business transaction between the complainant and the accused persons. Whenever the complainant had an amount with him, he used to keep the said amount deposited with accused persons. In the year 2006-07, the complainant had deposited an amount of Rs.22,00,000/- (rupees twenty-two lakhs only) with accused under different cheques of Rs.1,00,000/- (rupees one lakh only) each. Accused agreed to pay the interest on amount of deposit at the rate of 24 per cent per annum. In the year 2006-07, accused repaid entire amount along with interest.
3. In the year 2007-08, the complainant had deposited an amount of Rs.30,00,000/- (rupees thirty lakhs only) with the accused. Accused issued 30 cheques of Rs.1,00,000/- (rupees one lakh only) each in favour of the complainant. Accused agreed to pay the interest at the rate of 24 per cent per annum. The account of complainant was operating under the signature of the father of complainant Bhagchandji Rathi who is holding Power of Attorney for the complainant.
4. Accused No.2 requested the complainant that he would make payment of five cheques of Rs.1,00,000/- (rupees one lakh only) each. Accordingly, complainant returned back those five cheques. Accused made payment along with interest. Insofar as remaining 25 cheques issued by accused are concerned, the same were revalidated from time to time by extending date under the signature and handwriting of accused No.2. When all the 25 cheques were presented to the bank, the cheques were returned with the endorsement from the bank of the accused as, "Payment is stopped by the drawer". On 29.03.2008, accused made representation to the complainant that he would make payment of Rs.25,00,000/- (rupees twenty-five lakhs only). Therefore, accused issued cheque of Rs.10,00,000/- (rupees ten lakhs only) dated 29.03.2008 and cheque of Rs.15,00,000/- (rupees fifteen lakhs only) dated 31st March, 2008. The complainant presented those cheques to the bank on 24.09.2008 and 25.09.2008 respectively. Both the cheques were dishonored for the reasons "Funds Insufficient".
5. The complainant issued notice to the accused through his advocate. Though the notices were received by the accused persons, they did not return amount within stipulated period. Complaint case was filed. Process was issued. Pleas of accused were recorded. After evidence, statement under Section 313 of the Code of Criminal Procedure was recorded by the Judicial Magistrate First Class. Learned JMFC convicted accused No.2-Kamalkishor Fulchand Baheti for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for the period of one month and to pay a fine of Rs.5,000/-, in default, to further suffer SI for the period of 15 days.
6. Accused No.2 shall pay an amount of Rs.30,00,000/- (rupees thirty lakhs only) within a period of two months from the date of judgment, in default, sentence to suffer simple imprisonment for the period of one month.
7. The said judgment of conviction was challenged in Criminal Appeal No. 120 of 2013. Learned Additional Sessions Judge relying on the judgment of Hon'ble Apex Court in the case of Aneeta Hada .v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661, quashed and set aside the judgment of conviction and remanded the matter for retrial. Learned Additional Sessions Judge held
