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BOMBAY HIGH COURT
U.V. Bakra, J.
Reshmi Constructions, Goa —Applicant
versus
Laxman Vithal Chunekar
and Anr. —Respondents
Cr. Revision Application No.17 of 2014
Decided on 2.4.2014
Counsel for the Parties:
For the Applicant:A.R. Kantak, Advocate
For the Respondent No.1:Siddesh Shet, Amicus Curiae, Advocate
For the Respondent No.2: Ms. M. Gomes Pinto, A.P.P.
IMPORTANT POINT
Every partner is an agent of the Firm and his other partners for the purpose of business of the firm and the acts of every partner bind the firm and his partners.
Headnote:Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973 — Section 313 — Indian Partnership Act, 1932 — Sections 4, 9, 10, 14, 15, 19 and 22 — Authorisation to file complaint — Complainant not merely power of attorney holder of complainant, but one of the partners of said Firm — HELD — Complaint filed in the name of Firm maintainable. [Paras 17 & 18]
Negotiable Instruments Act, 1881 — Section 138 — Acquittal — Trial Magistrate stated in final order that accused acquitted — HELD — Since complaint has been held to be not maintainable — And no decision on merits — Final order ought to have been that the complaint dismissed as not maintainable and accused is discharged. [Para 18]
Result: Appeal partly allowed
U.V.Bakre, J.—Heard Mr. Katak, learned Counsel appearing on behalf of the applicant and Mr. Shet, learned Amicus Curiae on behalf of respondent No.1.
This Revision Application was initially filed as Criminal Appeal No. 80/2009 which was admitted by order dated 16.11.2009. Revision Application stands admitted and by consent is heard forthwith.
2. This revision application has been filed against the judgment and order dated 15.5.2009 passed by the learned Judicial Magistrate. First Class at Ponda (‘Trial Magistrate’) in Criminal Case No. 389/0A/2006/B.
3. The revision applicant was the complainant in the said criminal case whereas respondent No. 1 was the accused. Parties shall, hereinafter, be referred to as per their status in the said criminal case.
4. The complainant. the Partnership Firm represented by its partner, namely Shri Pandharinath Chafadkar, had filed the complaint under section 138 of the Negotiable Instruments Act, 1881. (N. I. Act) against the accused. It was alleged that the accused had issued a cheque bearing No. 1267782 dated 20.2.2006 for an amount off 1.20.000/- drawn on Goa Urban Cooperative Bank Ltd. Marcel Branch alongwith another cheque of similar amount on account of his liability to refund to the complainant a sum of Rs.2.40.000 being the excess sum received from the complainant towards the agreement dated 7.11.1996. When the said cheque was presented to the banker of the complainant for collection. it was returned back unpaid with the remark “funds insufficient”. The complainant issued legal notice dated 2.5.2006 by Registered A. D., Post informing the accused about the dishonour of the cheque and calling upon him to pay the cheque amount within 15 days from the date of receipt of the said notice. The notice was received by the accused on 4.5.2006, but the accused failed and neglected to comply with she said notice. Hence. tile complaint. The said complaint came to be registered as Criminal Case No. 389/OA/2006/B.
5. Substance of accusation was explained to the accused and the accused pleaded not guilty and claimed to be tried. The complainant examined its partner namely Shri Pandharinath Chafadkar as P.W. 1 and closed its case. The statement of the accused came to be recorded in terms of section 313 of the Code of Criminal Procedure (Cr. P.C.). The accused examined one Shri Sudin Timble as D.W. 1 and closed his case. Upon perusal of the records, the trial Magistrate instead of considering the merits of the matter. formulated the following point for determination:
“Whether the complaint is maintainable for non-production of proper authorisation to file the complaint ?”
6. The Trial Magistrate held that there was no authority given to P.W.1. to file the present complaint. The Trial Magistrate found that in his cress-examination. P.W. 1 stated that he is one of the partners of the complainant-Firm and that the transaction of the accused was with the complainant-Firm and P.W. 1 did not have any personal transaction with the accused. It was further found that P.W. 1 admitted that as per the power of attorney given to him by the complainant, there was no power to prosecute any person or to file any complaint or to depose on behalf of the complainant. The Trial Magistrate. on perusal of the said power of attorney, also held that no specific powers were given to P.W. 1 to file criminal complaint on behalf of the complainant-Firm or to depose in any such matters. The Trial Magistrate held that the accused had entered into transaction with the Partnership Firm and there was no personal transaction of the accused with P.W. 1. The Trial Magistrate further held that the cheque was issued in the name of Pandharinath Chafadkar, but the complaint was not filed by the said payee. The Magistrate held that the complainant-Firm was not the holder in due course of the cheque. Hence. the Trial Magistrate held that the complaint filed in the name of the Firm was not maintainable as no cause of action had arisen to
