2018 (1) TMI 753 - HC - Indian Laws

Natural justice - case of petitioners is that they have not been properly examined by the learned trial Court under Section 313 of the Code of Criminal Procedure and thereby the petitioners have been seriously prejudiced and they did not even answer the allegations levelled against them properly in the trial Court - Held that - It is true that all the incriminating materials are required to be put in during the examination of the petitioners so that an opportunity of explaining such incriminating circumstances may be given to the accused in a criminal trial. The purpose of incorporating section 313 of the Code of Criminal procedure is primarily based on the principle of natural justice. Therefore, the impact and the importance of the examination of the accused under Section 313 of the Code of Criminal Procedure cannot be ruled out altogether. In order to promote the commerce through cheque, negotiable instruments the provisions of Negotiable Instruments Act have been amended. To put both the petitioners behind the bar for two years would not serve the purpose of Negotiable Instruments Act. On the contrary the petitioners should be compelled to pay the amount in respect of the cheque issued by them and on that score they may be made liable to pay some sort of fine - The sentence of conviction for two years is thus modified to one day in trial Court till the rising of the Court. The application under Section 482 of the Code of Criminal Procedure Code stands disposed of.

Summary

Issues:
Challenge to judgment under Section 482 of CrPC, Examination of accused under Section 313, Liability of petitioners in partnership firm, Proof of financial capacity of complainant, Presumption under Sections 118 and 139 of NI Act, Importance of examination under Section 313, Distinction between liability of company and partnership firm, Application of precedents in similar cases, Modification of sentence to fine only.

Analysis:
The judgment in question involves a challenge under Section 482 of the CrPC against a judgment and order passed by the Sessions Judge affirming the conviction of the petitioners under Section 138 of the Negotiable Instruments Act. The petitioners contended that they were prejudiced due to inadequate examination under Section 313 of the CrPC, which prevented them from explaining incriminating materials. However, the Court noted that the purpose of Section 313 is to provide an opportunity for the accused to explain circumstances and found that the petitioners were aware of the allegations against them.

The issue of liability in a partnership firm was raised, arguing that the company should have been impleaded as an accused. The Court clarified the distinction between the liability of partners in a firm and shareholders in a company, emphasizing that partners are personally liable. It was held that the petitioners, as partners, could be convicted in their personal capacity without involving the partnership firm.

Regarding the proof of financial capacity of the complainant, the Court relied on Sections 118 and 139 of the NI Act, stating that it is not necessary to prove the complainant's financial capacity to establish liability under Section 138. Precedents were cited to support the presumption of liability against the petitioners in such cases, emphasizing the burden of proof on the accused to show the cheque was not issued for a debt.

The judgment also discussed the modification of the sentence, highlighting the objective of the NI Act to ensure free circulation of negotiable instruments. The Court modified the sentence to fine only, setting aside the imprisonment but upholding the fine amount. The petitioners were directed to deposit the fine within a specified time frame, with the complainant allowed to withdraw the amount. The application under Section 482 was disposed of, and instructions were given to send the lower court records promptly.

In conclusion, the judgment addressed various legal issues, including examination of accused, liability in partnership firms, proof of financial capacity, and application of legal precedents, ultimately modifying the sentence to fine only in line with the objectives of the Negotiable Instruments Act.