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2016 Supreme(Online)(KER) 21816
HIGH COURT OF KERALA
P.D.RAJAN, J
SREERAM HIRE PURCHASE – Appellant
Versus
ANILKUMAR – Respondent
CRL.A/973/2004
Important Points
Subject
Commercial Law - Negotiable Instruments
Act Referred
Headnote
Cheque - Negotiable Instruments Act - [138, 142] - The court interpreted provisions of the N.I. Act focusing on the necessity for the payee or holder in due course to file a complaint under Section 142 for dishonoured cheques, ultimately concluding the necessity of proper documentation to establish the partnership's claim.
Fact of the Case:
The appeal arises from a complaint against the accused for failing to honor a cheque issued during a hire purchase agreement. The complainant, a partnership firm, contended the cheque was issued in discharge of a debt, but it was issued in the name of one partner.
Finding of the Court:
The court found that the cheque was issued to a partner personally without evidence linking it to the firm's liabilities, thus ruling that the firm lacked standing to file a complaint under the N.I. Act.
Issues: Whether the complaint filed by the partnership firm was maintainable when the cheque was issued in the name of an individual partner and not in discharge of a firm liability.
Ratio Decidendi: The court determined that under Section 142 of the N.I. Act, only the payee or holder in due course can file a complaint, and in the absence of documentation proving the cheque's issuance for a partnership liability, the complaint was not maintainable.
Final Decision: The appeal was dismissed due to lack of merit.
SRI.K.N.PADMAKUMAR, SRI.P. RAMACHANDRAN
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937 CRL.A.No. 973 of 2004 ( )
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AGAINST THE JUDGMENT IN CC 712/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS, CHAVAKKAD DATED 20-04-2004 APPELLANT(S)/COMPLAINANT::
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SREERAM HIRE PURCHASE AND LOANS, THRIPRAYAR, CHAVAKKAD TALUK, REP. BY ITS MANAGING PARTNER, LEEBA SUKUMARAN, D/O.V.T.BALAN.
BY ADV. SRI.K.N.PADMAKUMAR RESPONDENT(S)/ACCUSED & STATE:: -------------------------------
1. K.B.ANILKUMAR, S/O. BHASKARAN, KALATHIL HOUSE, THIRUVATHRA DESOM, MANATHALA VILLAGE, CHAVAKKAD TALUK, THRISSUR.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
R, BY PUBLIC PROSECUTOR SRI. N. SURESH R BY ADV. SRI.P. RAMACHANDRAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
acd P.D. RAJAN, J -------------------------------------------
---------------------------------------------- Dated this the 7th day of January, 2016
JUDGMENT
This appeal is preferred by the complainant against the judgment in C.C.No.712/2000 of Judicial First Class Magistrate Court, Chavakkad, which was filed by him against the accused for offence punishable u/s.138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). The complainant is a registered firm dealing with hire purchase and loan business. On 16.12.1998 , the accused entered into hire purchase agreement with the complainant to purchase an autorickshaw and availed an amount of ₹
21,440/-. He agreed to repay the amount in 18 equal monthly instalments, but he paid only 5 instalments and thereafter defaulted the payment. The complainant claimed the due amount, the accused issued Ext.P3 cheque, drawn on Nattika Firka Service Co-operative Bank to the complainant. When he presented the cheque for encashment, it was dishonoured for the reason of funds insufficient. After this the complainant demanded the amount by giving a notice in writing to the accused. Even after receipt of notice, there was no payment. Hence the complaint.
2. During trial, the complainant was examined as PW1 and her documents were marked as Exts.P1 to P8. The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s.313 Cr.P.C. The accused examined DW1 and DW2 and marked Exts.D1 to D4. The learned Magistrate acquitted the accused u/s.255(1) Cr.P.C. Being aggrieved by that, complainant preferred this appeal.
3. The main contention advanced by the learned counsel for the appellant is that the complainant is a partnership firm between family members. The cheque was issued in the name of V.T. Balan, since he was the Managing Partner of the firm. The partnership firm has no separate legal entity like a company. Every partner can accept the cheque in their name for the liability of the firm. When cheque is issued in the name of Managing Partner, the Company is the payee or holder in due course and he/she can file a complaint.
4. In reply to the argument, the 1st respondent contended that Ext.P3 cheque was issued in the name of one V.T. Balan and the partner cannot claim that it was issued in discharge of a debt or liability of the partnership firm. Payee or holder of the cheque is one V.T. Balan.
When cheque is issued to one V.T. Balan in a personal capacity, a complaint on behalf of the partnership firm is not maintainable.
5. The general law is that anyone can set the criminal law in motion by filing a complaint before a Magistrate to take cognizance under Section 190 of the Code of Criminal Procedure . If a Statute prescribes any special criteria for putting the criminal law in motion, no court can take cognizance of the offence by violating those special criteria. Section 190 of the Code does not indicate any qualification for the complainant. But when a special statute prescribes an offence and provides special provision for taki
