Appeal filed by complainant challenging acquittal of accused under Section 138 of NI Act. Court rejected challenge regarding authorization of representative and evidence sufficiency, holding no grounds for interference.
Appeal dismissed. Judgment of acquittal by JMFC-II, Shivamogga upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO. 403 OF 2020 (A)
BETWEEN:
Digitally signed by SOWMYA D Location: High Court of Karnataka
(BY SRI. BHADRINATH R.,ADVOCATE)
AND:
…APPELLANT
THIS CRL.A FILED U/S.378(4) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 30.11.2019 PASSED BY THE J.M.F.C.-II, SHIVAMOGGA IN C.C.NO.346/2012-ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant under Section 378(4) of Cr.P.C. challenging the judgment of acquittal dated 30.11.2019 passed by JMFC-II, Shivamogga in CC No.346/2012
advancing a hand loan of Rs.23.00 Lakhs for purchase of properties. The amount was advanced in installments i.e, Rs.5.00 Lakhs on 11.10.2010, Rs.2.00 Lakhs on 08.02.2011, Rs.5.00 Lakhs on 26.02.2011, Rs.6.00 Lakhs on 07.03.2011 and Rs.5.00 Lakhs on 16.03.2011. The
accused promised to repay the said amount within a specified period. The accused failed to repay the amount as promised. Hence, on repeated demands, on 28.09.2011, the accused has issued a cheqe for Rs.23.00 Lakhs. When the said cheque was presented for encashment, it was returned with an endorsement ‘Funds Insufficient’. Then the complainant got issued a statutory notice and in spite of service of notice, the accused has not paid the cheque amount, but given an untenable reply. Hence, the complainant has filed a complaint before the learned Magistrate alleging that the accused has committed offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’).
cognizance of the offence and issued process against the accused. The accused appeared through his counsel and was enlarged on bail. The plea under Section 138 of the N.I. Act was recorded and accused denied the same.
counsel for appellant and learned counsel for respondent. Perused the records.
in acquitting the accused and sought for allowing the appeal by convicting the accused.
Court. He would contend that there is no proper authorization to PW.1 and hence the prosecution itself is invalid.
Whether the judgment of acquittal passed by the trial Court is perverse, erroneous and arbitrary so as to call for any interference by this Court?
accused has availed loan to the extent of Rs.23.00 Lakhs from the complainant on various dates and in discharge of the said debt, a cheque dated 28.09.2011 came to be issued. Admittedly the complainant is a Firm and it is alleged that amount was paid in cash. When the
complainant is a Firm, it is hard to accept the contention that the amount was paid in cash. The evidence on record clearly discloses that there are certain disputes between the parties pending in OS No.253/2011 and OS No.110/2015 before the trial Court.
the accused for purchasing the property. But, the complaint was filed on behalf of the Firm. He admits that, he is working as Supervisor and it is a Partnership Firm. He admits that one Syed Farzrul Rehman, Syed Ahmed, Syed Abdul Gafar and Akthar Fathima, are the four Partners. It is asserted that, only Syed Ahmed has given Power of Attorney to run the Partnership firm. But, the said Power of Attorney is not produced. The Power of Attorney in favour of PW.1 was executed and though the Partnership Firm is having four partners, but authorization was given by only one partner. This is evident from Ex.P8 (GPA). The other three partners have not given any consent for prosecution of accused. Further, when the allegations disclose that the amount was paid in 5 installments and when the first
installment itself was not repaid, the payment of subsequent installments becomes doubtful. Though Ex.P10-
Bank Account extract is produced, but it does not disclose that the said amount referred thereunder in Ex.P10 was paid to the accused. The learned Magistrate has considered all these aspects in detail. Considering the authorization of PW.1, as the authorization was by only one of the partners and other three partners are not authorized to prosecute the accused, question of PW.1 prosecuting the accused on behalf of the Firm does not arise at all.
answered in negative. Hence, I proceed to pass the
following:
ORDER
The appeal stands dismissed
Sd/JUDGE
KGR* List No.: 1 Sl No.: 9
2 issues framed by the court
Whether the judgment of acquittal passed by the trial Court is perverse, erroneous and arbitrary so as to call for any interference by this Court?
Whether the Power of Attorney Holder is duly authorized to prosecute the accused on behalf of the Partnership Firm?
M/S. Meir Ismail and Co. (Rabbani Rice Mills) v/s Sri. Mohammed Ilyas Ahmed
Sri. Mohammed Ilyas Ahmed
Rajendra Badamikar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
