2021 (8) TMI 87 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - non - impleading of the partnership firm as accused in the complaint case - scope for reappreciation of evidences on record or not - authorization letter to file Complaint Cases - HELD THAT - The authorization letter has been filed in the records of Complaint Case No. 86/2006, but it failed to consider that the same has not been exhibited and brought on record as the complainant did not produce the P.W-1 on recall in Complaint Case No. 86/2006 in spite of aforesaid opportunity granted by the learned Judicial Commissioner, Ranchi and the accused did not have any opportunity to cross examine P.W-1 on the point of authorization to represent the complainant company. This lacunae could not be filled up by referring to the authorization letter simply filed in the record of Complaint Case No. 86/2006. Accordingly, the appellate court s judgement also cannot be sustained in the eyes of law as the same suffers from perversity on this point - decided in favour of the accused/petitioner. Non - impleading of the partnership firm as accused in the complaint case - HELD THAT - It is an admitted case on record that the cheques in both the complaint cases were issued under the signature of the accused, in the capacity of the partner of the partnership firm namely Mehta Transport Company i.e. for and on behalf of the said partnership firm; the Legal Notices in connection with the bouncing of cheques were also issued in the name of the accused being the partner of the said firm; the complaint case was also filed against the accused being the partner of the said firm. It is also an admitted fact on record that the specific case of the complainant in both the cases was that the accused being partner of Mehta Transport Company and on behalf of the partnership firm entered into hire purchase agreement for purchase of vehicle and the loan was to the extent of ₹ 12,00,000/- was extended to the partnership firm. In discharge of the said debt, the accused handed over two cheques in favour of the complainant which had bounced on account of insufficient fund . The cheques were issued from the account of the said partnership firm and the petitioner had signed the cheques as a partner - It is also not in dispute that the partnership firm has not been made accused in both the complaint cases and cognizance of the offence was taken only under Section 138 of the Negotiable Instruments Act, 1881. In the absence of the partnership firm being arraigned as an accused, both the complaint petitions against the petitioner (partner of the firm) for offence under Section 138 of the Negotiable Instruments Act, 1881 were not maintainable. No bar or impediment, legal or otherwise, has been reflected from the records of the two cases in making the partnership firm as an accused in the complaint cases and accordingly the doctrine of lex non cogit ad impossibilia is not attracted. The petitioner had signed the cheque in both the cases as a partner of the partnership firm, for and on its behalf. It is held that it was imperative on the part of the complainant company to make the partnership firm of the accused as a co-accused in the complaint cases and on account of failure to do so, the petitioner could not be convicted for offence under Section 138 of Negotiable Instruments Act, 1881 as complaint only against the petitioner in both the cases was itself not maintainable - Decided in favor of petitioner. The petitioner is discharged from his liabilities under the bail bonds furnished by him - petition allowed.

Summary

Issues Involved:
1. Authorization of P.W-1 to file the complaint cases.
2. Non-impleading of the partnership firm as an accused in the complaint cases.

Detailed Analysis:

Issue No. 1: Authorization of P.W-1 to File the Complaint Cases

Criminal Revision No. 833/2012 (Complaint Case No. 86/2006):

The court addressed whether the letter of authorization exhibited in Complaint Case No. 87/2006 could be considered in Complaint Case No. 86/2006. The trial court relied on the authorization letter from the connected case, but this was found to be legally unsustainable. The appellate court also failed to recognize that the letter was not properly exhibited in Complaint Case No. 86/2006. Consequently, the court concluded that the complaint was filed without proper authorization, making the complaint invalid.

Criminal Revision No. 830/2012 (Complaint Case No. 87/2006):

In this case, the authorization letter was duly exhibited and the P.W-1 was cross-examined. Both the trial and appellate courts found that P.W-1 was authorized to file the complaint. The court upheld these findings, noting that the mode of authorization is a matter of evidence and that the authorization by the Regional Manager was sufficient.

Issue No. 2: Non-Impleading of the Partnership Firm as an Accused

The court examined whether the failure to include the partnership firm as an accused invalidated the complaints. It was established that the loans were extended to the partnership firm, and the cheques were issued by the firm, signed by the accused as a partner. The court found that the appellate court's findings were perverse and did not align with the specific case of the complainant that the debts were of the partnership firm.

The court referred to several Supreme Court judgments, including *Aneeta Hada v. Godfather Travels & Tours (P) Ltd.* and *Anil Gupta v. Star India Private Limited*, which held that for maintaining a prosecution under Section 141 of the Negotiable Instruments Act, arraigning the company or partnership firm as an accused is imperative. Without the partnership firm being an accused, the complaints against the partner alone were not maintainable.

Summary of Findings:

1. Criminal Revision No. 830/2012 (Complaint Case No. 87/2006): The issue of authorization was decided in favor of the complainant. However, the failure to include the partnership firm as an accused rendered the complaint invalid.

2. Criminal Revision No. 833/2012 (Complaint Case No. 86/2006): The issue of authorization was decided in favor of the accused. Additionally, the failure to include the partnership firm as an accused also rendered the complaint invalid.

Conclusion:

The judgments of conviction and sentence in both cases were set aside. Both criminal revision petitions were allowed, and the petitioner was discharged from his liabilities under the bail bonds. The lower court records were ordered to be sent back to the concerned court.