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2008 Supreme(MP) 1111
N.K. Mody, J.
Daccan Lubus (M/s.) v. M/s. Chakradhar Constructions
Criminal Appeal No. 804 of 2008 (I); Decided on 6.11.2008.*
Pranaya Shukla for appellant; Arvind Gokhle for respondent.
Headnote:(1) Negotiable Instruments Act, 1881 -- S. 138 -- complaint under -- can be filed by one of the partners on behalf of the firm. V-1995 (2) Crimes 636 and IX-1996 (3) Crimes 402 relied on. [Para 8
(2) Criminal P.C., 1973 -- S. 31 -- additional evidence in appeal -appellant intending to fill up the lacuna -- cannot be permitted to adduce additional evidence. AIR 2001 SC 2120 discussed. [Para 11
(3) Negotiable Instruments Act, 1881 -- S. 138 -- case under-initially cheque bearing date as 30.9.2000 -- date got changed to 2.12.2003 -- presented to bank after 5 months thereafter -- no explanation offered -- complaint rightly dismissed. [Para 11
¼1½ ijdzkE; fyf[kr vf/kfu;e] 1881 && /kkjk 138 && ifjokn && QeZ dh vksj ls Hkkxhnkjksa esa ls ,d }kjk Qkby fd;k tk ldrk gSA V-1995 ¼2½ dzkbEl 638 rFkk o"kZ 1996 ¼3½ dzkbEl 42 voyafcrA ¼ iSjk 8
¼2½ naM izfdz;k lafgrk] 1973 && /kkjk 31 && vihy esa vfrfjDr lk{; && vihykFkhZ dh deh nwj djus dk vk‘k; && vfrfjDr lk{; nsus dh vuqKk ugha nh tk ldrhA , vkb vkj 2001 ,l lh 2120 foosfprA ¼ iSjk 11
¼3½ ijdzkE; fyf[kr vf/kfu;e] 1881 && /kkjk 138 && lko/kkuh && izkjaHk esa psd ij 30-9-2000 dk fnukad Fkk && fnukad esa 2-12-2003 dk ifjorZu fd;k x;k && rRi‘pkr~ 5 ekl Ik‘pkr~ cSad esa izLrqr fd;k x;k && dksbZ Li"Vhdj.k ugha fn;k x;k && ifjokn U;k;kuqlkj [kkfjt fd;k x;kA ¼ iSjk 11
1. Being aggrieved by the judgment dated 31.10.2007 passed by JMFC, Indore in Criminal Case No. 3386/07, whereby a private complaint filed by the appellant under section 138 of Negotiable Instruments Act (which shall be referred hereinafter as "Act") was dismissed, the present appeal has been filed.
2. Short facts of the case are that the appellant-firm filed a complaint under section 138 of the Act on 30.9.2000 through its partner Manik Rao Patel alleging that against the supply made by appellant-firm, respondent issued cheque of Rs. 2,50,000/- bearing cheque No. 4152893 dated 30.6.2003 of Akola-Janata Commercial Cooperative Bank Ltd., Akola Branch, Jalgaon. It was alleged that the aforesaid cheque was presented by the appellant-firm through its banker Bank of India, Branch Satha Bazar, Indore for collection on 16.12.2003. But the same was returned with a memorandum issued by the concerned bank to the effect "stop payment". It was alleged that thereafter a notice of demand was issued by the appellant-firm which was duly served on the respondent. But inspite of that the cheque amount was not paid. It was alleged that by not clearing the cheque respondent has committed an offence which is punishable under section 138 of the Act. It was prayed that after taking cognizance the respondent be punished.
3. After taking cognizance and also after framing of charge and recording of evidence, learned trial Court dismissed the complaint filed by the appellant-firm against which the present appeal has been filed.
4. During the course of hearing IA No. 4759/08 has been filed by the appellant-firm wherein it was prayed that appellant-firm be permitted to submit additional documents copies of which are enclosed along with the application. In the application it is submitted that all the relevant documents relating to the transaction were handed over by the appellant-firm to the counsel for the appellant. But the same was not filed for the best reasons known to the advocate. It is submitted that since the appellant-firm changed the advocate and after knowing the fact that the documents has not been filed, the appellant-firm contacted the advocate and obtained some of the documents which were filed by the appellant-firm before the learned Court below. It was further submitted that after dismissal of the complaint again appellant-firm contacted the lawyer and obtained rest of documents which are being filed along with the application. It was submitted that in the facts and circumstances of the case appellant-firm be permitted to adduce further evidence to support its case on merits.
5. Learned counsel for the appellant-firm submits that the learned Court below has dismissed the complaint on two grounds. Firstly that [2009 (III) the complaint has been filed through partner of the appellant-firm who has no locus at all and the partners has not been joined to file the complaint. Secondly on the ground that the relevant documents has not been filed by the appellant-firm to show the complete transaction. Learned counsel submits that since the complaint has been filed by the appellant-firm which is a partnership firm through Manik Rao Patel one of the partner of the appellant-firm of which the partnership-deed has been filed as Ex.P-10, therefore, the findings of the learned Court below that the partner Manik Rao Patel was having no locus to file the complaint is illegal. For this contention reliance is placed on a decision in the matter of Brijlal v.Jugat Kishore, reported in V-1995 (2) Crimes Page 636, wherein the complaint was filed by the partnership firm through its partner under section 138 of Negotiable Instruments Act, Bombay High Court held that the complaint suffers no illegality of not being filed by proper person.Further reliance was placed on a decision in the matter of Gallesh Sukhlal Joshi v. M.A. Bharati, reported in IX-1996 (3) Crimes page 402 wherein the complaint was filed by one of the partners of firm under section 138
