2021 (9) TMI 93 - HC - Indian Laws

Grant of special leave to file appeal - Dishonor of cheque - signatories are authorised to sign on behalf of the Mukta Developers or not - presence of two signatories - HELD THAT - The cheque clearly has a stamp as Mukta Developers Authroised Signatory and there are two signatures below it. The complainant has not taken any steps as per provisions of NI Act to serve notice to the firm or to other signatory. Section 142 opens with non-obstant clause and mandates that no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque and, such complaint is made within one month of the date on which the cause of action arise. Proviso to section 142(1)(b) states that the cognizance of complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he has sufficient cause for not making a complaint within such period. There is no substance in the contention that he was not aware that cheque is issued by Mukta Developers. Thus, explanation offered for not joining accused Mukta Developers or other signatory as accused is false. There is no justification whatsoever. On the face of the cheque itself it is clear that it was drawn in favour of Mukta Developers. In view of facts and circumstances involved in the matter and provisions of NI Act the order passed by the JMFC is perfectly justified. There is no case made out to entertain the appeal - the leave to appeal is rejected.

Summary

Issues:
Grant of special leave to file appeal against acquittal judgment; Application under Section 319 of CrPC to add a partnership firm and its partner as accused; Dismissal of application for amendment of complaint; Dishonoured cheque; Compliance with provisions of Negotiable Instruments Act; Delay in filing complaint against partnership firm; Justification for not adding accused earlier; Burden of proof on accused; Discretionary power under Section 319 of CrPC; Knowledge of complainant about transaction.

Analysis:
The judgment deals with an application for special leave to file an appeal against an acquittal judgment made by the JMFC. The applicant contended that the order resulted in a failure of justice and miscarriage of justice as it was passed without considering the material on record and the statutory scheme under the Negotiable Instruments Act. During the proceedings, the complainant moved an application under Section 319 of CrPC to add a partnership firm and its partner as accused, which was dismissed by the JMFC. The accused did not raise a defense regarding the partnership firm earlier, and the complainant's explanation for the delay in adding the firm as accused was found false based on the evidence presented.

The complainant's case involved a dishonored cheque issued by the accused, leading to a legal notice being sent as per the provisions of the law. The complainant alleged that the accused, along with another individual, had offered an amount and a plot, issuing four cheques, out of which one was dishonored. The JMFC considered the evidence on record, including the cheques signed by the partners of the firm, and found that the complainant was aware of the transaction.

The judgment discussed the burden of proof on the accused and the discretionary power under Section 319 of CrPC. It cited legal precedents to emphasize the importance of compliance with the provisions of the Negotiable Instruments Act, particularly regarding the issuance of notices to the firm and the authorized signatories. The court highlighted the need for the complainant to follow the legal procedures and timelines prescribed under the Act.

The respondent's counsel argued that the order passed was justified, and there was no justification for granting leave to appeal. The judgment referred to another case where an application under Section 319 of CrPC was allowed, but the delay in filing the complaint was not condoned by the courts. Similarly, in the present matter, the delay in adding the partnership firm as accused was found unjustified based on the evidence available, and the application was rejected.

In conclusion, the court found that the order passed by the JMFC was justified based on the facts and provisions of the Negotiable Instruments Act. The application for special leave to appeal was rejected, leaving all rights and contentions of the parties open in case of any pending civil suit.