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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Alok Kumar Verma, J.
Ramesh Nagarkoti - Appellant
Versus
Kedar Datt Purohit - Respondent
Criminal Appeal No. 426 of 2018
Decided On : 03-03-2021
(A) Negotiable Instruments Act, 1881, Secs. 138, 139, 118 and 141 – Dishonour of cheque amount Rs. 20,00,000/- – With the endorsement of “Exceed agreement" – Notice – Complaint by appellant complainant – Dismissed by Trial Court on the ground that without the firm being arraigned as on accused, the accused would not be prosecution u/s 138 of the Act, 1881 – Criminal appeal by spedial leave by complainant – Respondent/accused was not the sole proprietor of the “Purohit Agency" but DW-1 and DW-2 who were brothers of accused/respondent were the partners of firm “Purohit Agency" – PW-1 (complainant) has admitted in his cross-examination that cheque-in-question belong to the firm and said cheque was given to the firm – The firm was not arraigned as an accused in the present matter – Appeal is devoid of merit which is liable to be quashed – Appeal dismissed – Trial Court’s judgment confirmed.
(Paras 25, 28, 29, 33 and 35)
(B) Negotiable Instruments Act, 1881, Sec. 139 – Presumption under – If the cheque will able to raise probable defense which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. (Para 23)
(C) Negotiable Instrument Act, 1881, Sec. 141 – Offences by company – If the cheque had been issued by the firm which was subsequently dishonoured, a partner of firm would not be liable from prosecution u/s 138 of Act, 1881 – Without the firm being arraigned as an accused. (Para 33)
¼v½ ijØkE; fy[kr vf/kfu;e] 1881] /kkjk 138] 139] 118 ,oa 141 & #ñ 20]00]000@& dh jkf'k ds pSd dk vuknj.k & ^vuqca/k ls vf/kd gksus* ds i`"Bkadu ds lkFk & uksfVl & ifjoknh@vihykFkhZ }kjk ifjokn&fopkj.k U;k;ky; }kjk bl vk/kkj ij [kkfjt fd;k x;k fd vfHk;qDr ds :i esa QeZ dks i{kdkj cuk;s fcuk] vfHk;qDr dks vf/kfu;e] 1881 dh /kkjk 138 ds v/khu vfHk;ksftr ugha fd;k tk ldrk gS & ifjoknh }kjk fo'ks"k vuqefr ds ek/;e ls nkf.Md vihy & foi{kh@vfHk;qDr QeZ ßiqjksfgr ,tsUlhÞ dk ,dek= izksizkbVj ugha Fkk & cfYd DW-1 ,oa DW-2] tks vfHk;qDr@foi{kh ds HkkbZ Fks] QeZ ßiqjksfgr ,tsUlhÞ ds ikVZuj Fks & PW-1@ifjoknh us viuh izfrijh{kk esa ;g vLohdkj fd;k gS fd iz'uxr pSd QeZ ls lEcfU/kr Fkk vkSj mDr pSd QeZ dks fn;k x;k Fkk & izLrqr ekeys esa QeZ dks vfHk;qDr ds :i esa i{kdkj ugha cuk;k x;k Fkk & vihy xq.k nks"k ls jfgr gS] tks [kkfjt fd;s tkus ;ksX; gS & vihy [kkfjt & fopkj.k U;k;ky; dk fu.kZ; iq"VA ¼izLrj 25] 28] 29] 33 ,oa 35½
¼c½ ijØkE; fy[kr vf/kfu;e] 1881] /kkjk 139 & ds vihy mi/kkj.kk & ;fn vfHk;qDr ,sls fdlh laHkkT; cpko ds rdZ dks mBkus esa leFkZ gksxk] tks fdlh fof/kr% izorZuh; _.k vFkok nkf;Ro dh fo|ekurk ds fo"k; esa lUnsg dk l`tu djrk gS] ogk¡ vfHk;kstu vlQy gks ldrk gSA ¼izLrj 23½
¼l½ ijØkE; fy[kr vf/kfu;e] 1881] /kkjk 141 & dEifu;ksa }kjk vijk/k & ;fn pSd QeZ }kjk tkjh fd;k tk pqdk gS vkSj mDr pSd ckn esa vuknfjr gks tkrk gS] rks QeZ dk ikVZuj] ml QeZ dks vfHk;qDr ds :i esa i{kdkj cuk, fcuk vf/kfu;e] 1881 dh /kkjk 130 ds v/khu vfHk;kstu ds fy, nk;h ugha gksxkA ¼izLrj 33½
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
JUDGMENT
Alok Kumar Verma, J. - This appeal, by special leave, is preferred by the appellant-complainant against the judgment and order dated 30.11.2018, passed by the learned Chief Judicial Magistrate, Almora in Complaint Case No.01 of 2018, "Ramesh Nagarkoti vs. Kedar Datt Purohit", whereby the learned trial court acquitted the respondent-accused from the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act, 1881").
2. As per the averments made in the complaint, the complainant and the accused were businessmen and the complainant had good relations with the accused, who was the proprietor of "Purohit Agency." The accused made a request to the complainant that he was in need of money for his business work and for purchasing a house. He assured the complainant to return the amount as early as possible. Due to the relationship, the complainant deposited time to time Rs.19,45,000.00/- through NEFT/RTGS in the account of the accused's proprietorship firm "Purohit Agency" and Rs.55,000.00/- through cash payment on credit. In the said deposited amount, a sum of Rs.1,90,000/- was deposited by the complainant through Gopal Singh (PW-2). The complainant gave a sum of total Rs.20,00,000.00/- to the respondent on credit. The complainant demanded his money. Then, the accused issued a cheque No.797972 dated 16.10.2017 payable on Indian Bank, Almora for the sum of Rs.20,00,000.00/- in regard to the credit amount given to the accused. The said cheque was deposited by the complainant in his account. The said cheque was dishonoured by the bank of the accused with note of "exceed agreement". The complainant acknowledged the dishonoured cheque on 02.11.2017 and a legal notice was sent to the accused on 09.11.2017, which was served upon the accused on 17.11.2017. A reply was given by the accused on false and misconceived facts. Since no payment was forthcoming pursuant to the said demand notice, a complaint case was filed by the complainant against the accused under Section 138 of the Act, 1881.
3. The learned trial court took cognizable on the complaint. The process under Section 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") was issued. The respondent-accused appeared before the learned trial court. Substance of accusation was recorded by the learned trial court, wherein the respondentaccused pleaded not guilty and claimed to be tried.
4. The complainant in order to prove his case got himself examined as PW1 and examined Gopal Singh (PW2).
5. The complainant filed Cheque-in-question No.797972 dated 16.10.2017 of Rs.20,00,000.00/-. Return Memo, copy of Registered Notice, Receipt, Acknowledgment, Reply of the accused and Statement of Bank Account.
6. The witness Gopal Singh (PW-2), a relative of the complainant, stated that the accused demanded money from the complainant. Then, on the request of the complainant, he deposited Rs.1,90,000/- in the account of the accused through Cheque No. 910747 dated 02.02.2017.
7. Statement of the accused was recorded under Section 313 of the Code. The accused examined Govind Ballabh Purohit (DW1) and Mohan Prasad Purohit (DW2).
8. The witness Govind Ballabh Purohit (DW1) and the witness Mohan Prasad Purohit (DW2) are brothers of the accused. Govind Ballabh Purohit (DW1) stated that he was a partner of the "Purohit Agency" and the witness Mohan Prasad Purohit (DW2) stated that he was the main Director of the "Purohit Agency". He further stated that there was no commercial relationship between the complainant and the accused. According to this witness, the commercial relationship was between him and the complainant.
9. The accused filed copies of the statement of the bank account of Govind Ballabh Purohit of Punjab National Bank, C.D., and copies of pass-book of Mohan Prasad Purohit of Indian Bank, Almora and Punjab National Bank, Dharanaula, Almora.
10. The accused submitted his written arguments.
11. The learned trial court on hearing both th
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