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JHARKHAND HIGH COURT
Anubha Rawat Choudhary, J.
Through Video Conferencing
Binay Prasad – Petitioner
versus
State of Jharkhand and Anr. – Opp. Parties
Cr.Rev.No.830 of 2012 with Cr.Rev.
No.833 of 2012
Decided on 26.7.2021
Negotiable Instruments Act, 1881 – Sections 138 and 141 – Dishonour of cheque – Offence by Partnership Firm – No bar or legal impediment has been reflected from records of two cases in making partnership firm as an accused in complaint cases and doctrine of lex non cogit ad impossibilia is not attracted – Petitioner had signed cheque in both cases as a partner of partnership firm, for and on its behalf – In absence of partnership firm being arraigned as an accused, both complaint petitions against petitioner (partner of firm) for offence under Section 138 of Negotiable Instruments Act, 1881 were not maintainable – It was imperative on part of complainant company to make partnership firm of accused as a co-accused in complaint cases and on account of failure to do so, petitioner could not be convicted for offence under Section 138 of Negotiable Instruments Act, 1881 as complaint only against petitioner in both cases was itself not maintainable – Appellate court has completely lost sight of status of accused who was merely a partner of firm and that loan was extended to partnership firm and not accused in his individual capacity – Legal infirmities in impugned judgements are required to be considered with all legal consequences in revisional jurisdiction of this Court to prevent failure of justice – Impugned judgements of conviction and sentence of petitioner in both cases set aside. (Paras 37, 38, 46, 47, 48, 50 and 51)
Result: Criminal Revision Petitions allowed.
JUDGMENT
Heard Mr. A.K. Kashyap, the learned Senior Counsel appearing on behalf of the petitioner in both the cases.
2. Heard Mr. Ashish Kumar, the learned counsel appearing on behalf of the Opposite Party-complainant in both the cases.
3. Heard Mr. Sanjay Kumar Srivastava, learned counsel appearing on behalf of the opposite party State in Cr. Revision No. 830 of 2012.
4. Heard Mr. Shiv Shankar Kumar, learned counsel appearing on behalf of the opposite party State in Cr. Revision No. 833 of 2012.
5. The complainant and the accused in both the cases are same persons. The appellate court judgements in both the cases are dated 29.06.2012 and have been passed by the learned District and Additional Sessions Judge-III, Ranchi and the appeals have been dismissed. The trial court judgement in Cr. Revision No. 830 /2012 is dated 05.08.2011 and in Cr. Revision No. 833 /2012 is dated 18.08.2011 both passed by the learned Judicial Magistrate, 1st Class, Ranchi. The essential details in connection with the impugned judgements are as under: -
| Criminal Revision No.830 of 2012 arises out of Criminal Appeal No.142 of 2011 and Complaint Case No. 87/2006 and T.R. No. 1629/2011. | Criminal Revision No.833 of 2012 arises out of Criminal Appeal No.144 of 2011 and Complaint Case No. 86/2006 and T.R. No. 438/2011. |
| -Conviction of petitioner under section 138 of Negotiable Instruments Act, 1881. | -Conviction of petitioner under section 138 of Negotiable Instruments Act, 1881. |
| -simple imprisonment for one year with fine of Rs. 1,000/- | -simple imprisonment for one year with fine of Rs. 2,000/- |
| -compensation amounting to Rs. 7,19,739/- | -compensation amounting to Rs. 7,15,164/- |
| -Cheque No. 969458 dated 14.12.2005 drawn on Punjab and Sindh Bank, Ranchi. | -Cheque No. 969457 dated 14.12.2005 drawn on Punjab and Sindh Bank, Ranchi. |
6. The learned counsel for the petitioner has submitted that both the cases arise out of two different loans extended by the opposite party no. 2 to the partnership firm namely, Mehta Transport Company in which the petitioner was a partner. The loan was extended for purchase of the tipper vehicles for which an agreement of hire purchase dated 06.05.2003 in both the cases were executed by the petitioner in capacity of a partner of the said partnership firm namely Mehta Transport Company on behalf of the partnership firm. The vehicle involved are -
In Cr. Revision No. 830 of 2012 - Vehicle No. JH-02C-2103- corresponding complaint case is Complaint Case No. 87/2006
In Cr. Revision No. 833 of 2012 - Vehicle No. JH-02C-2102- corresponding complaint case is Complaint Case No. 86/2006
7. Broadly two points have been argued by the learned Senior counsel for the petitioner in both the cases: -
(a) The authorization letter to file Complaint Case No. 86/2006 was not exhibited before the trial court and the authorization letter exhibited in another Complaint Case No. 87/2006 marked as Exhibit 6 (with objection) could not have been considered in Complaint Case No. 86/2006 to hold that the Field Officer of the complainant (P.W-1) was duly authorized by the complainant company to file the complaint case. Otherwise also the so-called authorization letter to file the complaint case (exhibited in Complaint Case No. 87/2006 and not exhibited in Complaint Case No. 86/2006) cannot be said to be an authorization letter issued by the complainant company to file the cases as the same was issued by another employee of the complainant company being its Regional Manager and was not supported by the any Board’s resolution/ Articles of Association of the complainant company.
The learned counsel has also submitted that the letter of authorization was never produced along with the complaint petition, but was sought to be introduced by filing a petition for recall of the wit
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