Back
Kasaragod Self Employees Financing Company(R) – Appellant
Versus
Mamtha Rathnakara Shetty – Respondent
JUDGMENT :
Sophy Thomas, J.
This appeal is at the instance of the complainant in C.C.No.351 of 2001 on the file of Chief Judicial Magistrate Court, Kasaragod, impugning the judgment in Crl.A No.372 of 2004, by which the trial court judgment was set aside, and the accused was acquitted under Section 138 of the Negotiable Instruments Act (for short, ‘the NI Act’).
2. The complainant-M/s.Kasaragod Self Employees Financing Company(R), represented by its General Power of Attorney holder, filed a complaint under Section 138 of the NI Act against the accused, alleging that the accused, towards discharge of the amount borrowed by her from the complainant firm, issued Ext.P2 cheque dated 15/5/2001 for an amount of Rs.19,78,000/-, assuring that it would be honoured on presentation before the bank, and the complainant presented the cheque before the bank for encashment, but it was returned dishonoured for the reason ‘insufficient funds’. Though statutory notice was sent to the accused in her correct address, it was returned unclaimed, and the amount was not repaid. Hence, the complaint.
3. After taking cognizance and on appearance of the accused before the trial court, particulars of offence were
The prosecution under Section 138 of the NI Act by an unregistered firm is valid, and the authority of a partner to file a complaint is upheld, emphasizing the importance of compensatory justice.
A company can authorize an employee to file a complaint under the Negotiable Instruments Act, and a signed blank cheque can create a presumption of liability unless rebutted by the accused.
A person who is not a signatory to the cheque cannot be prosecuted under Section 138 of the Negotiable Instruments Act, 1881, for the offence of dishonour of cheque for insufficiency of funds.
The proprietor of a sole proprietorship holding liability for a dishonored cheque under Section 138 NI Act does not require the business entity to be arrayed as an accused.
Power of attorney holders can file cheque dishonour complaints if they possess personal knowledge of the transaction; absence of such knowledge may invalidate the complaint.
Punishment under Section 138 of Act is not a means of seeking retribution but a means to ensure payment of money.
An unregistered partnership firm can file a complaint under Section 138 of the Negotiable Instruments Act, as Section 69(2) of the Indian Partnership Act does not bar such filings.
The main legal point established in the judgment is the requirement for specific averments to establish vicarious liability of partners in a partnership firm under Section 138 of the NI Act and the n....
(1) Dishonour of cheque – In cases where payee/complainant is company, all that is necessary to be demonstrated before Magistrate is that complaint is filed in name of payee.(2) Dishonour of cheque ....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
