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2010(1) Bankmann 266 (Kar.)
KARNATAKA HIGH COURT
K. Ramanna, J.
Govind Ram Chanani —Appellant
versus
Latha and Anr. —Respondents
Cri. A. No. 553 of 2005
Decided on 23.1.2009
Counsel for the Parties:
For the Appellant:Mohd. Usman Shaikh, Advocate.
For the Respondents:A.N. Radhakrishna, Advocate.
IMPORTANT POINT
Partner/manager of a partnership firm cannot file complaint in his individual capacity.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138 and 142—Dishonour of cheque—Acquittal by Trial Court—Application for correction of records also dismissed by Trial Court—Complainant is a partnership firm—Appellant cannot be permitted to file complaint in his individual capacity without there being any written authorization given by partners of said partnership firm—Authorised person should file complaint only representing said firm and not in his individual capacity or any other capacity which he is not legally entitled to do so—Benefit which is available to a firm, which is a legal entity is not available to members of partnership firm—Only eligibility criteria prescribed by Section 142 is that complaint must be by payee or holder in due course—This criteria is not satisfied in instant case—Complaint rightly dismissed by Court below—Appeals dismissed. (Paras 9 to 11)
AIR 2009 SC 422 Applied 1998 Cri. LJ 4735: 2002 DCR 278: 2002 DCR 422: (2004)1 DCR 493-Referred to.
(ii) Negotiable Instruments Act, 1881—Sections 138 and 142—Criminal Procedure Code, 1973—Section 258—Dishonour of cheque—Offence against partnership firm—If complaint is filed by Manager in his personal capacity, then authorisation is required—Complainant must necessary be a payee or holder in due course or must be an authorised person to file complaint on behalf of payee or holder in due course. (Para 9)
K. Ramanna, J.—All these appeals filed by the appellant Govind Ram Chanani stated to be the authorised representative of M/s. Alloy Steel Emporium, Mathikere, Bangalore under Section 378(4). Cr.P.C. to set aside the order dated 8.2.2005 passed by the 18th Additional CMM and 20th ASCJ. Bangalore in C.C. Nos. 29538/99, 29138/99, 29139/99, 28960/99, 29540/99, 29137/99, 28961/99 and 29539/99 allowing I.A. 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. Alloy 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 Negotiable Instruments Act. 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 that 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 in charge and manager of M/s. Alloy Steel Emporium and in addition to that partners of the firm executed GPA dated 1.12.1991 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 Alloy 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 partner’s 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. Alloy 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. 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 complaint, 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 8-2-2005 passed by 18th Addl. CMM and 20th Addl. Small Causes Judge, Bangalore in the aforesaid criminal cases dismissing, the complaints filed by appellant is perverse, incorrect and illegal?
7. It is contended by learned counsel for the appellant that resp
