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2009(1) Bankmann 196 (Kar.)
KARNATAKA HIGH COURT
R.B. Naik, J.
Suresh Kallappa Makavi —Petitioner
versus
Madan Bindurao Desai and
Another —Respondents
Criminal Revision Petition
No. 1960 of 2005
Decided on 23.6.2008
For the Petitioner:M/s. Jayaraj and Associates, Advocates.
For the Respondent No. 1:Sri R.B. Deshpande, Advocate.
For the Respondent No. 2: Sri Ramesh Kumar, High Court Government Pleader.
IMPORTANT POINT
Proceedings under Section 138 of the Negotiable Instruments Act can be initiated as against a person who has signed the cheque and if it is a cheque of a joint account signed by two persons, the complainant can chose and either proceed against both the signatories or proceed against one of the signatories.
Headnote:Negotiable Instruments Act, 1881—Section 138 and 142—Dishonour of cheque drawn by firm—Prosecution for firm and its three partners—Complaint was got dropped against two partners i.e. accused No. 2 and 4—Conviction of petitioner by courts below—Revision—Cheque had been signed by accused No. 2 partner and petitioner—Both signatories or any one of them could be prosecuted and thus prosecution of petitioner in absence of accused No. 2 suffered no illegality—Contention of petitioner that he was only a sleeping partner was of no avail when petitioner had signed the cheque—Conviction was not liable to be interfered with—Sentence however modified that petitioner to pay Rs. 2,50,000 as fine and in default to suffer six months imprisonment and if fine was paid Rs. 2,25,000 to be paid to complainant.
Result: Revision dismissed with modification in sentence.
R. B. Naik, J.—The petitioner accused is convicted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 5,000 in default to suffer simple imprisonment for two months and further, he is directed to pay compensation of Rs. 2,12,000 to the complainant by an order of conviction and sentence dated 22.5.2004 passed by the II Additional Civil Judge (Junior Division), Judicial Magistrate First Class, III Court, Hubli in C.C. No. 755 of 1993. The said order of conviction and sentence is confirmed by judgment dated 7.11.2005 passed by the Presiding Officer, Fast Thack, Court-II, Dharwad, sitting at Hubli in Cri. A. No.26 of 2004.
2. The respondent/complainant had given a hand loan of a sum of Rs. 2,12,000 to the petitioner accused herein on 1.12.1990 for the purpose of augmenting his business. Towards the discharge of part of his liability, the petitioner accused had issued a cheque in a sum of Rs. 1,00,000 on 10.12.1991. The same on presentation was dishonoured. The respondent/complainant insisted for the return of the entire amount lent by him and accordingly, the petitioner accused issue a cheque dated 30.11.1992 for a sum of Rs. 2,12,000 towards the discharge of his liability. The cheque was presented on 3.12.1992 for encashment. The same was returned with a bankers endorsement on 5.12.1992 as funds insufficient. The respondent/complainant issued a legal notice on 17.12.1992 and sent it by registered post acknowledgement due and also under certificate of posting on 18.12.1992 calling upon the petitioner accused to make good the amount indicated in the notice within 15 days from the date of receipt of the notice. The respondent/complainant filed a complaint under Section 200 of the Criminal Procedure Code, 1973 for an offence punishable under Section 138 of the Negotiable Instruments Act against four accused persons. He implicated
M/s Dharmashree Industries as accused 1 Shankar Basavanneppa Jiginni as accused 2, Suresh Kallappa Makavi, the petitioner (herein as accused 3) and Smt. Kamala Krishnappa as accused 4. During the course of the trial proceedings, the respondent/complainant withdrew his claim as against accused 2 on the ground that he was suffering from paralaysis. Accused 4 Smt. Kamala Krishnappa was also got deleted from the proceedings at the instance of the respondent/complainant on the ground that she was not the partner of the firm as on the date of issuance of the cheque.
3. The petitioner/accused contends that the cheque in question was not issued towards the discharge of liability of accused 1-firm or the personal liability of accused 3, the petitioner herein. The respondent/complainant cannot individually prosecute the complaint as against the petitioner accused 3, as petitioner/accused 3 is only a sleeping partner and it is only accused 2 and 4 who were active partners responsible for the day to day business of M/s Dharmashree Industries and were responsible for the liability of the said firm. It is further contended that accused 2 and 4 in connivance with the complainant has issued a cheque signed by the petitioner/ accused herein. Accused 2 also had signed the said cheque, even then, the respondent/complainant has failed to prosecute accused 2 and has got deleted accused 2 on the stage that the proceedings under Section 138 of the Negotiable Instruments Act can be initiated as against a person who has signed the cheque and if it is a cheque of a joint account signed by two persons, the complainant can choose and either proceed against both the signatories or proceed against one of the signatories. The complainant cannot be compelled to proceed against both the signatories as such the contention of the petitioner/accused that prosecution as against the petitioner accused alone is not maintainable does not hold any water. It is not in dispute that the petitioner/accused has signed the cheque.
