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2010(1) Bankmann 39
KARNATAKA HIGH COURT
Kramanna, J. —
Govind Ram Chanani — Appellant
versus
Latha & Anr — Respondents
Criminal Appeal No. 533 of 2005 connected with Criminal Appeal Nos.554 to 560 of 2005,
Decided on : 23-01-2009
Counsels:
Mr.Mohd.Ulhnan Shaikh, for Common Appellant Mr.A.N.Radhakrishna, for Common Respondents.
IMPORTANT POINT
In a case pertaining to dishonour of cheque complaint is competent if filed by payee or holder in due course or their authorized representative.
Headnote:Negotiable Instruments Act, 1985, Section 138 – Case pertaining to dishonour of cheque - Filed by the complainant – Who can be - Should only be the payee or the holder in due course – Or the authorized person of the complainant – Stranger to transaction – Not competent to file complaint – Order of acquittal after dismissal of complaint – Competent and legal – Interference – Not warranted.
Facts of the case :
The case of the appellant is that appellant-Govind Ram Chanani described himself as a proprietor, M/s. Alloy Steel Emporium issued legal notice to respondents calling upon them to make good the cheque amount issued by them in favour of M/s AlIoy Steel Emporium but dishonoured by their banker for insufficient funds The respondents did not comply with the demand of notice. Therefore, appellant filed complaints against respondents for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The Court below, after taking cognizance, secured the presence of respondents and recorded their plea. Since the respondents pleaded not guilty, the matter was posted for evidence of complainant-appellant, at the time, appellant filed an application in all these cases stating that in fact, appellant-complainant is a partnership concern of Sri Bhom Saraogi and Smt.Anandi Devi Saraogi and that Govind Ram Chanani is incharge and Manager of M/s Alloy Steel Emporium and in addition to that, partners of the firm executed GP A dated 01.12.1991 in his favour empowering him to do all acts which partners are concerned to do it. But while issuing demand notice to respondents and while filing the complaint, inadvertently, the complainant M/s. AlIoy Steel Emporium was wrongly shown as proprietary concern of Govind Ram Chanani, that the said wrong description was unintentional and the same is a result of mistake. The said mistake crept in, owing to improper communication. If the said mistake is rectified, the same will in no way affects or prejudices the respondents. One of the partners of the firm is his wife and another partner is his brother-in-law. In fact, Govind Ram Chanani is whole and sole of the said business. Therefore he sought permission of the Court by filing an application to correct the cause title as M/s. AlIoy Steel Emporium represented by Mr. Govind Ram Chanani.
Finding of court :
The Court below has rightly dismissed the complaints filed by appellant and rightly acquitted the respondents in all the cases. Further, according to appellant the order of dismissal of complaints and acquittal of respondents passed by the Court below on the applications mede by respondents under Section 258 of the Cr.P.C. is incorrect and illegal. Of course, though the respondents have made application under Section 258 of the Cr.P.C. seeking for dismissal of complaints filed by the appellant in all the cases, the Court below has rightly considered the said applications under Section 203 of the Cr.P.C. and further considering the filet that complaints filed by appellant is not maintainable in the eye of law and since the appellant issued legal notice and presented the complaints before. Court in his individual capacity without any authorization from the M/s. AlIoy Steel Emporium, the Court below had rightly dismissed the complaints filed by appellant, consequently acquitted the respondents for the offences alleged against them in all the cases.
K.Ramanna, J. —
All these appeals filed by the appellant-Govind Ram Chanani stated to be the authorised representative of M/s.AlIoy Steel Emporium, Mathikere, Bangalore under Section 378(4) of the Criminal Procedure Code, 1973 to set aside the order dated 08.02.2005 passed by the 18th Additional CMM and 20th Additional Small Causes Judge, Bangalore in C.C.Nos.29538, 29138, 29139,28960,29540,29137,28961 and 29539 of 1999 allowing LA. filed by the respondents/accused in the respective cases and consequently acquitted the respondents .
2. The case of the appellant is that appellant-Govind Ram Chanani described himself as a proprietor, M/s. Alloy Steel Emporium issued legal notice to respondents calling upon them to make good the cheque amount issued by them in favour of M/s AlIoy Steel Emporium but dishonoured by their banker for insufficient funds The respondents did not comply with the demand of notice. Therefore, appellant filed complaints against respondents for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The Court below, after taking cognizance, secured the presence of respondents and recorded their plea. Since the respondents pleaded not guilty, the matter was posted for evidence of complainant-appellant, at the time, appellant filed an application in all these cases stating that in fact, appellant-complainant is a partnership concern of Sri Bhom Saraogi and Smt.Anandi Devi Saraogi and that Govind Ram Chanani is incharge and Manager of M/s Alloy Steel Emporium and in addition to that, partners of the firm executed GP A dated 01.12.1991 in his favour empowering him to do all acts which partners are concerned to do it. But while issuing demand notice to respondents and while filing the complaint, inadvertently, the complainant M/s.AlIoy Steel Emporium was wrongly shown as proprietary concern of Govind Ram Chanani, that the said wrong description was unintentional and the same is a result of mistake. The said mistake crept in, owing to improper communication. If the said mistake is rectified, the same will in no way affects or prejudices the respondents. One of the partners of the firm is his wife and another partner is his brother-in-law. In fact, Govind Ram Chanani is whole and sole of the said business. Therefore he sought permission of the Court by filing an application to correct the cause title as M/s. AlIoy Steel Emporium represented by Mr. Govind Ram Chanani.
3. The respondents herein objected the said application filed by appellant, on various grounds and had also filed application under Section 258 of the Cr.P.c. in all the cases praying to dismiss the complaints, contending that the complaints are not maintainable in the eye of law and the complainant cannot be allowed to correct his mistake at the belated stage and cannot allow any third party to enter appearance in the case. Hence, it is prayed to dismiss the complaint.
4. After hearing both sides and considering the materials placed before it, Trial Court dismissed the applications filed by appellant seeking permission of the Court to correct record, on the other hand, allowed the applications filed by the respondents seeking for dismissal of complaints, consequently acquitted the respondents. Hence, these appeals. However, the appellant herein is challenging only the order of acquittal passed by the Trial Court and he is not challenging in these appeals the order passed by Trial Court dismissing his application filed for correction of mistakes crept in the records.
5. Heard the arguments of learned Counsel for the petitioner as well as learned Counsel for respondents. Perused the records.
6. Keeping in mind the arguments advanced at the bar, the point that arises for consideration is, whether the order dated 08.02.2005 passed by 18th Additional CMM and 20th Additional Small Causes Judge, Bangalore in the aforesaid criminal cases dismissing, the complaints filed by appellant is perverse, incorrect and illegal?
