Allowed

Sri Narasimha Murthy v. Sri Ajay Kumar Manvi

Karnataka HC18 Aug 2023CRL.RP/442/2013

Case brief

AI extract

What is this about?

High Court allowed a revision petition, setting aside convictions by trial and appellate courts. It held that a complaint under Section 138 of the NI Act was not maintainable against individual partners where the cheque was drawn by a partnership firm and the firm was not arraigned as an accused, citing Supreme Court precedents on vicarious liability.

What did the court decide?

Convictions by Trial and Sessions Courts set aside; Criminal Case dismissed as not maintainable; Petitioner acquitted of offence u/s 138 NI Act.

Sri Narasimha Murthy Vs Sri Ajay Kumar Manvi — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18TH DAY OF AUGUST, 2023 BEFORE

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THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

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CRIMINAL REVISION PETITION No.442 OF 2013

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BETWEEN:

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Sri. Narasimha Murthy, Aged: Major, R/at: No.289/1, Monisha Nilaya, Begur, Bangalore - 560 068.

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Also: Partner, M/s. Darshan Auto Service, No.289/4, Begur Main Road, Near Canara Bank, Begur, Bangalore - 560 068.

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..Petitioner

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(By Sri. Satyanarayana S. Chalke, Advocate)

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AND:

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Sri. Ajay Kumar Manvi, Aged about 40 years, S/o. Sri. Pattabhi Ramalu, R/at: No.1200, 6th Main, 'A' Block, 2nd Stage, Rajajinagar, Bangalore - 560 010.

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.. Respondent

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(By Sri. Krishna R. and Sri. Pravardhan Urs. Advocates)

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This Criminal Revision Petition is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973, with the following prayer:

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Crl.R.P.No.442/2013

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“(i) Call for the records in C.C.No.33976/2010 on the file of the learned XV Additional Chief Metropolitan Magistrate, Bangalore City;

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(ii) reverse and set aside the judgment of conviction and sentence dated 26th December 2012 in C.C.No.33976/2010;

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(iii) Call for the records in Crl.A.No.21/2013 on the file of the learned Fast Track (Sessions) Judge -V, Bangalore City;

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(iv) Reverse and set aside the order dated 27/04/2013 in Crl.A.No.21/2013,

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(v) Dismiss the complaint and acquit the accused; and further,

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(vi) To pass such other order/s that this Court deems proper, under the circumstances of the case and in favour of the petitioner, in the ends of justice.”

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This Criminal Revision Petition having been heard through physical hearing/video conferencing hearing and reserved on 04-08-2023 , coming on for pronouncement of orders, this day, the Court made the following:

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O R D E R

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The present revision petitioner as accused No.1 along

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with accused No.2 were arraigned as accused in C.C.No.33976/2010, in the Court of the learned XV Additional Chief Metropolitan Magistrate, Bangalore City (hereinafter for brevity referred to as “the Trial Court”), for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity

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referred to as “the N.I. Act”). The Trial Court acquitted the accused No.2 but convicted accused No.1 (present petitioner) for the said offence by its judgment of conviction and order on sentence dated 26-12-2012.

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Aggrieved by the same, the present petitioner (accused No.1) preferred a Criminal Appeal, in the Court of the Fast Track (Sessions) Judge-V, Bangalore City, (hereinafter for brevity referred to as “the Sessions Judge’s Court”) in Criminal Appeal No.21/2013.

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The appeal was contested by the respondent who was the complainant in the Trial Court. The Sessions Judge’s Court in its order dated 27-04-2013 dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 26-12-2012 in C.C.No.33976/2010.

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Aggrieved by the impugned orders passed by both the Courts, the accused No.1 has preferred this revision petition.

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The summary of the case of the complainant in

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the Trial Court was that, he is a Doctor by profession and knows both accused No.1 and accused No.2 since several years who are his relatives. During the month of July 2007, the accused No.1 and accused No.2 requested him for a financial help of a sum of 15,00,000/- to meet their family necessities and for business purposes. At their request, he paid a sum of 5,00,000/- in cash on three occasions during the months of July 2007, November 2007 and September 2008, in all a sum of `15,00,000/- as a hand loan. The accused persons had agreed to repay the said loan amount within one and a half years from the

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date of borrowing. When he approached them for repayment of the said land amount, they postponed the repayment for one or the other reason and finally when repayment was demanded vehemently, the accused issued a cheque for a sum of `15,00,000/- bearing No.648882 dated 20-04-2010 drawn on the Syndicate Bank, Tilak

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Nagar Branch, Bangalore and asked him to present the said cheque. Accordingly, when he presented the said

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cheque for its encashment, the same came to be returned un-paid with the banker's endorsement as "Exceeds arrangement" . The complainant has further stated that he intimated the dishonour of the said cheque to the accused, who asked him to re-present the said cheque. Accordingly, he re-presented the said cheque on the dates 24-04-2010 and 03-05-2010, however, on both the occasions, the said cheque came to be returned un-paid with the same endorsement as " Exceeds arrangement ". Thereafter, he got issued a legal notice to the accused persons asking them to repay the loan amount. In spite of service of notice upon them on the date 19-05-2010, the

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accused persons failed to pay the cheque amount, which constrained the complainant to institute a criminal case in the Trial Court against the accused persons for the offence punishable under Section 138 of the N.I. Act.

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Both the accused persons appeared in the Trial Court and contested the matter through their counsel. They pleaded not guilty and claimed to be tried. Accordingly, to prove his case, the complainant got himself

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examined as PW-1 and got marked documents from Exs.P-1 to P-14 and closed his side. However, on behalf of the accused persons, neither any witness was examined nor any documents were got marked.

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The Trial Court after recording the evidence led before it and hearing both side, by its impugned judgment of conviction and order on sentence dated 26-12-2012 acquitted the accused No.2 but convicted the accused No.1 for the offence punishable under Section 138 of the N.I. Act and sentenced him to pay a fine of a sum of `15,05,000/- and in default of payment of said fine, to undergo simple imprisonment for a period of one year. Challenging the said judgment of conviction and order on sentence passed by the Trial Court, the accused No.1 (present petitioner) preferred an appeal in Criminal Appeal No.21/2013, before the learned Sessions Judge’s Court, which after hearing both side, by its impugned order dated 27-04-2013 dismissed the appeal filed by the accused No.1, while confirming the impugned judgment of conviction and order on sentence passed by the Trial

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Crl.R.P.No.442/2013 7

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Court. Being aggrieved by the judgments of conviction and order on sentence of both the Courts, the accused No.1 has preferred this revision petition.

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The Trial Court and Sessions Judge’s Court’s records were called for and the same are placed before this Court.

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Learned counsel for the revision petitioner (accused No.1) is appearing physically before the Court. Learned counsel for the respondent (complainant) is neither present physically nor through video conference.

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Heard the learned counsel for the revision petitioner (accused No.1). Perused the materials placed before this Court including the impugned judgments and the Trial Court and Sessions Judge’s Court’s records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.

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After hearing the learned counsel for the revision petitioner (accused No.1) and going through the entire

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materials placed before the Court, the only point that arise for my consideration in this revision petition is:

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Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?

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Learned counsel for the revision petitioner

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(accused No.1) in his single point argument submitted that, the cheque in question is issued by a partnership firm, however, the said Firm has not been made a party by the complainant before the Trial Court, as such, the very complaint itself is not maintainable.

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In his support, the learned counsel relied upon a judgment of the Bombay High Court in the case of PHILIP J. Vs. ASHAPURA MINECHEM LTD. and another reported

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in 2016 (4) Mah.L.J.169 .

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As already observed above, in spite of granting several and sufficient opportunities, the learned counsel for the respondent (complainant) has remained absent

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and did not address his argument, as such, the respondent's side argument was taken as 'not addressed'.

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The complainant - Dr. Ajay Kumar Manvi got

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himself examined as PW-1, who, in his examination-inchief, in the form of affidavit evidence, has reiterated the contentions taken up by him in his complaint. He has stated that accused No.1 and accused No.2 who are the husband and wife are very well known to him for several years and that they had a cordial relationship. In the month of July 2007, the accused persons contacted him and requested for a loan of a sum of 15,00,000/- for their family necessities and business purposes. Since the accused were very well known to him, he helped them with a hand loan by way of cash of a sum of 5,00,000/given three times, i.e. in the months of July 2007, November 2007 and September 2008, in total amounting to a sum of `15,00,000/-. Though the accused persons had promised to repay the said loan amount within one and a half years time from the date of borrowing, however, they did not repay the said loan amount within the agreed time. At the constant demand made by him (complainant), the accused No.1, with the knowledge and

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consent of accused No.2, issued a cheque bearing No.648882 for a sum of `15,00,000/- and dated 20-04-2010, drawn on the Syndicate Bank, Tilak Nagar Branch, Bangalore and requested him (this witness) to present the same for realisation. PW-1 has further stated that when he presented the said cheque for its realisation, the same came to be returned un-paid with the banker's endorsement " Exceeds arrangement ". He brought the same to the notice of the accused, who requested him to re-present the said cheque. Accordingly, he re-presented the very same cheque on the dates 24-04-2010 and 03-05-2010, however, on those two subsequent occasions also, the cheque came to be returned with the same endorsement " Exceeds arrangement ".

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To support his contention, the witness has produced the returned cheque and got it marked at Ex.P-1 and the signature of the drawer therein (accused No.1) at Ex.P-1(a). He produced three banker's endorsements evidencing the return of the cheque unpaid with the shara

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' Exceeds arrangement ' and got them marked at Ex.P-2, Ex.P-3 and Ex.P-4 respectively.

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PW-1 has further stated that after the successive

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return of the cheque, he got issued a legal notice dated 14-05-2010 to the accused persons under Section 138 of the N.I. Act, calling upon them to pay the cheque amount within fifteen days from the date of the said notice. He sent the notices both under Registered Post Acknowledgement Due (RPAD) as well as Under Certificate of Posting (UCP). However, even after receipt of the legal notice, the accused did not pay the cheque amount but sent an untenable reply dated 03-06-2010, through their counsel. The witness has got produced an office copy of

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the said legal notice at Ex.P-5, four postal receipts at Ex.P-6, four Certificate of Posting receipts at Exs.P-7 to P-10, four postal acknowledgment cards from Exs.P-11 to P-14. However, the witness has not produced and marked

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the reply notice said to have been sent to him by the accused. With the said evidence, PW-1 contended that

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the accused persons have committed the offence

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punishable under Section 138 of the N.I. Act.

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The witness was subjected to a detailed crossexamination from the accused's side wherein he adhered to his original version. However, in his cross examination, a defence was taken by the accused that, since the complainant and themselves were known to each other and were friends, there were financial transactions between them. In that regard, the complainant had retained a duly signed cheque of the accused, however, without returning the said cheque, even after repaying the amount taken by them on the previous occasion, he has misused the same by filing the present case. However, PW-1 did not admit the said suggestion as true.

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From the accused's side, neither any witness was examined including accused themselves nor any documents were got marked as exhibits.

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From the above evidence of PW-1, it is established that the complainant and the accused were

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Crl.R.P.No.442/2013 13

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known to each other. Apart from PW-1 stating to that effect in his examination-in-chief, even a suggestion to that effect was made in the cross-examination of PW-1 from the accused's side. Further, by suggesting to PW-1 in his cross-examination, the accused themselves have admitted that there were financial transactions between them and the complainant earlier to the alleged transaction in question. By suggesting to PW-1 in his cross-examination that the cheque at Ex.P-1 was given by them to PW-1 in respect of an earlier financial transaction and that the complainant has retained the said cheque without returning the same to the accused though he was liable and required to return the same, the accused themselves have admitted that the cheque at Ex.P-1 is issued by them to the complainant. No where in the cross-examination of PW-1, the accused have denied that they were not the drawer of the cheque at Ex.P-1. Similarly, they have also not denied the evidence of PW-1 that the said cheque at Ex.P-1 was presented for its realisation by the complainant and that though it was

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presented thrice for realisation, on all the three occasions, the same was returned unpaid with the banker’s shara ‘ Exceeds arrangement ’. Therefore, the dishonor of the cheque as per the banker’s endorsements at Ex.P-2, Ex.P-3 and Ex.P-4 also stands proved.

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The evidence of PW-1 that after repeated return of the cheque unpaid, he caused a legal notice upon the accused persons as per Ex.P-5 and the notices were sent both under Registered Post Acknowledgement Due (RPAD) as well as Under Certificate of Posting (UCP), as evidenced in Exs.P-6 to Ex.P-10 and his further evidence that the notices were served upon the accused as evidenced in Exs.P-11 to P-14 also have not been denied from the accused's side. They have only asked PW-1 in his crossexamination as to whether he is aware about the service of notice upon the accused, for which the witness expressed his ignorance. By that itself, it cannot be taken that the accused persons have denied the service of notice upon them by the complainant. The evidence of PW-1

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that the accused have sent a reply after receipt of the legal notice has not been denied in his cross-examination. Thus, the issuance of a legal notice after dishonour of the cheque and the service of the said notice upon the accused also stands established.

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Thus, in the ordinary course, though a presumption under Section 139 of the N.I. Act about the existence of a legally enforceable debt in favour of the complainant would arise, however, in the instant case, the very contention of the revision petitioner is that the complaint itself was not maintainable before the Trial Court since the drawer of the cheque which was a partnership firm was not arraigned as a party.

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The accused have only suggested to PW-1 in his cross-examination that, with respect to a previous monetary transaction between them, the cheque in question was given to him, however, PW-1 (complainant) even after receiving the repayment of the loan amount, has retained the duly signed cheque of the accused with

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him and failed to return the same despite the requests made by the accused and has misused the said cheque. They further suggested to PW-1 that alleging that the complainant has not returned the said cheque, the accused had lodged a complaint with the Electronic City Police Station, however, PW-1 expressed his ignorance about the same. PW-1 also denied a suggestion that the accused had given him a duly signed blank cheque and in that, he (complainant) himself has filled the contents and presented the same. He also denied a suggestion that due to personal enmity, the complainant has lodged a false complaint against the accused. Except the above suggestions made to PW-1 in his cross-examination, the accused persons have not taken any further step to substantiate their contention. They have not even produced a copy or acknowledgement of their alleged complaint against the complainant before the Electronic City Police Station and got the same marked as an exhibit.

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However, a reading of the impugned judgment of the

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Trial Court would go to show that, in the argument from the accused' side, a contention was taken that the accused No.2 in the Trial Court since was not a signatory to the cheque at Ex.P-1, she was not liable and as such, she cannot be found guilty for the alleged offence. The Trial Court in its judgment, observing that the accused were shown as partners of a Petrol Bunk managed by accused No.1 and that there was no material produced by the complainant to show that the accused No.2 was also responsible for the day-to-day affairs and the management of the said Petrol Bunk run by them, had proceeded to acquit accused No.2 of the alleged offence. However, it held the accused No.1 as guilty for the alleged offence punishable under Section 138 of the N.I. Act.

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Before the Sessions Judge's Court in Criminal Appeal No.21/2013 which was filed only by accused No.1,

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a contention was taken by the appellant that, his is a partnership firm and the cheque at Ex.P-1 was issued on behalf of the Firm, as such, he could not be vicariously held liable for the act of the Firm, without the Firm being made as a party to the complaint. However, the Sessions Judge's Court observing that, the appellant (accused No.1) has not produced any material to show that, his is a partnership firm, whether a registered partnership firm or not, who are all the partners, etc., proceeded to observe that the said contention of the learned counsel for the appellant before it was not acceptable.

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However, the very same contention is once again taken up by the learned counsel for the revision petitioner in the present revision petition.

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Learned counsel for the revision petitioner in his single point argument submitted that, when the cheque is issued by a partnership firm without making the Firm as one of the accused, the complaint is not maintainable only

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against the two individuals, though calling them as partners of the partnership firm.

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In his support, he relied upon a decision of the Hon’ble Apex Court in Phillip's case (supra) , wherein the learned Single Bench of the Bombay High Court, in a similar circumstance, for the similar offence, and also taking support of the judgment of the Delhi High Court in the case of Vijay Power Generators Ltd. Vs. Sumit Seth [2014 All M.R. (Cri.) Journal 305] was pleased to observe that, for maintaining prosecution against a partner, arraigning a partnership firm as an accused is imperative. The basic premise of holding either a Director or a partner liable for prosecution being the same that of the vicarious liability. It further observed that, once the Company is held to be an essential party and that arraigning of a Company as an accused is imperative for prosecution under Section 141 of the N.I. Act, it necessarily follows that arraigning of a partnership firm is also imperative for prosecution against the partners under Section 141 of the

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N.I. Act. With this, it observed that the prosecution launched against only one of the partners of a partnership firm without joining the partnership firm, is not maintainable.

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Our Hon’ble Apex Court in the case of Dilip Hariramani Vs. Bank of Baroda reported in AIR 2022 SUPREME COURT 2258 wherein for an offence punishable under Section 138 of the N.I. Act, the notice was issued to accused partner and not to the Firm, though the accused had not obtained the loan in his individual capacity and not issued the dishonoured cheque in his personal capacity and nor even involved in the day-to-day affairs of the Firm, however, had stood as a guarantor for such loan as a partner, was pleased to hold that, he cannot be convicted, as guarantor's liability comes under civil liability. At the same time, it also observed that, unless the Firm commits an offence as the principal accused, it's partners cannot be held vicariously liable and convicted.

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The Hon’ble Apex Court in para-14 of the above said

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judgment was pleased to observe as follows:

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“14. The provisions of Section 141 impose vicarious liability by deeming fiction which presupposes and requires the commission of the offence by the company or firm. Therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in subsection (1) or (2) would not be liable and convicted as vicariously liable. Section 141 of the NI Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished. However, such vicarious liability arises only when the company or firm commits the offence as the primary offender…."

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Admittedly, in the case on hand, the drawer of the cheque at Ex.P-1 is not an individual but is a partnership firm. The signatory to the cheque is shown to have signed the cheque as a partner of M/s. Darshan Auto Service. Thus, if the cheque is taken as the proof of

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existence of a legally enforceable debt in favour of the complainant, then it would be the partnership firm which is the drawer of the cheque and who is liable to the complainant. As such, it was very much required for the complainant to arraign the partnership firm as an accused along with its partners to fasten the vicarious liability upon the partner/s who is/are liable for the business, management and affairs of the Firm. However, neither in the complaint nor in the evidence of PW-1, there is any whisper that the accused No.1 (petitioner herein) and accused No.2 were the partners of M/s. Darshan Auto Service and that they were the only partners of the said Firm and were responsible for the business, management and affairs of the Firm. Merely because in the copy of the legal notice at Ex.P-5, the accused persons are shown as partners of M/s. Darshan Auto service, by such description itself, it cannot be concluded that the accused were the only partners of the said Firm and that they were responsible for the affairs of the partnership firm. As such, the very complaint filed by the complainant in the

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Trial Court without arraigning the partnership firm as the accused was not maintainable. However, the Trial Court did not consider the said lacuna in the case of the complainant. On the other hand, though the learned Sessions Judge has considered the said point, however, he has reasoned that the appellant before it (accused No.1) had not produced any material much less Partnership Deed to show that his is a partnership firm and whether it was registered or un-registered, etc. As such, the learned Sessions Judge did not accept the contention taken by the appellant (accused No.1) before it. The said reasoning given by the learned Sessions Judge is not acceptable for the reason that, the very legal notice at Ex.P-5 describes the accused as the partners of M/s. Darshan Auto Service. Further, as observed above, the drawer of the cheque at Ex.P-1 is shown to be a partnership firm which is M/s. Darshan Auto Service. Thus, the very documents produced by the complainant himself were showing that the drawer was a partnership firm but not the accused persons individually. This evidence, the learned Sessions Judge's

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Court did not appreciate in its proper perspective which resulted in it dismissing the appeal and confirming the order of conviction passed by the Trial Court in respect of accused No.1.

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Since the reasoning of the Trial Court as well the Sessions Judge's Court is now proved to be perverse and erroneous, the same warrants interference at the hands of this Court and the complaint filed by the complainant deserves to be held as not maintainable.

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Accordingly, I proceed to pass the following:

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O R D E R

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[i] The Criminal Revision Petition stands

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allowed in part;

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[ii] The impugned judgment of conviction and order on sentence passed by the learned Fast Track (Sessions) Judge-V, Bangalore City, dated 27-04-2013 in Criminal Appeal No.21/2013, is set aside;

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[iii] The impugned judgment of conviction

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and order on sentence passed by the learned XV

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Additional Chief Metropolitan Magistrate, Bangalore City, dated 26-12-2012 in Criminal Case No.33976/2010, only in so far as it relates to convicting and sentencing the revision petitioner herein (i.e. accused No.1) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, stands set aside;

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The criminal case filed against accused No.1 stands dismissed as not maintainable. Consequently, the revision petitioner (accused No.1) - Sri. Narasimha Murthy, Aged: Major, R/at: No.289/1, Monisha Nilaya, Begur, Bangalore - 560 068 Also: Partner, M/s. Darshan Auto Service, No.289/4, Begur Main Road, Near Canara Bank, Begur, Bangalore - 560 068, is acquitted of the offence punishable under

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Section 138 of the Negotiable Instruments Act, 1881.

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Registry to transmit a copy of this order to both the Trial Court and also to the Sessions Judge’s Court along with their respective records, forthwith.

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Sd/JUDGE

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BMV*

Sri Narasimha Murthy v. Sri Ajay Kumar Manvi

Case brief

What is this about?

What did the court decide?

Sri Narasimha Murthy v. Sri Ajay Kumar Manvi

Case brief

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What did the court decide?

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