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TMI Blog2022 (6) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... st the respondent alleging, inter alia, that for the discharge, in part of existing debt and liability the respondent issued a cheque on 15th December, 2015 for Rs.5 lacks drawn on ICICI Bank, Ballygunge Branch in favour of the complainant. The said cheque was dishonoured due to insufficient fund which was informed by the banker of the complainant, viz, State Bank of India, Park Street Branch on 22nd December, 2015. The complainant issued notice through its learned Advocate for demanding payment of the said amount within the statutory period of time as contained in Section 138(b) of the NI Act. The respondent in spite of receipt of notice failed to make such payment within 15 days thereof. So the complaint was filed by the complainant, being a partnership firm duly represented by the complainant. 5. CS 0082901 of 2016 is another complaint filed by the same appellant against the identical respondent under Section 138 of the NI Act alleging, inter alia, that in discharge of legally enforceable debt or liability, the respondent issued a cheque for Rs.5 lacks dated 15th March, 2016 drawn on ICICI Bank, Ballygunge Branch in favour of the complainant. The said cheque was however dishono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , leaned Advocate for the appellant submits that the trial court correctly held referring to certain decisions that if the cheques stands in the name of a partnership firm, a partner of the said firm can file a complaint and such complaint by an unregistered firm is maintainable as Section 69 of the Partnership Act has no manner of application in a criminal complaint under Section 138 of the NI Act. In this regard, Mr. Chowdhury refers to a judgment of Delhi High Court in Smt. Rani Kapoor vs. M/s Silvermount reported in 2017 SCC Online Del 8985. In the said report the issue as to whether an unregistered partnership firm is entitled to maintain complaint under Section 138 of the NI Act came up for consideration before the Hon'ble Court. The court on due consideration of divergent views expressed by various High Courts finally came to the conclusion placing reliance on B.S.I Ltd vs. Gift Holding Pvt. Ltd : 2000 SCC (Cri) 538 held that a criminal proceeding is neither for recovery of money nor for enforcement of any security etc. Section 138 of the NI act is a penal provision the commission of which offence entails a conviction and sentence of proof of the guilt in duly conducted crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd from the evidence on record (Ex-2) that the firm is a registered firm dated 10.02.2012. On the date of filing of complaint, it was registered. Even if the firm was unregistered, a complaint under Section 138 N.I. Act is maintainable as Section 69 of the Partnership Act is applicable in civil cases and not in criminal cases. 13. It is further argued by the advocate of the respondent whether consent of other partners are required in filing complaint under Section 138 of the N.I Act. In this case the appellant is one of the partner who admitted in his evidence that he prior to filing of the complaint, did not take consent of the other partner of the firm namely Siddhartha Rai. In Ganesh Sukhlal Joshi vs. M.A Bharti reported in 1995 SSC Online Bom 476 it was held that the complaint by one of the partners cannot be faulted and when the complaint is filed by one of the partners of the firm, it suffers from no infirmity. 14. The learned trial court has rightly decided on this point that Section 18 of the Partnership Act provides that partner to be the agent of the firm for the purpose of the business of the firm and any partner is competent to file a complaint on behalf of the firm. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. 16. Finally the Hon'ble Supreme Court in Rangappa (supra) held in paragraph 26 as hereunder: "26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que. 21. It is submitted by the learned Senior Counsel on behalf of the respondent placing reliance on the judgment of the Hon'ble Supreme Court in Basalingappa vs. Mudibasappa reported in (2019) 5 SCC 418 that to rebut the presumption under Section 139 of the NI Act, it is open for the accused to rely evidence laid down by the appellant/complainant or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Interference of preponderance of probability can be drawn not only from the materials on record by the parties but also by reference to the circumstances upon which the parties rely. 22. In course of examination the complainant as PW1 stated that the respondent was not personally liable to the complainant/firm. Probably the complainant wanted to mean that the partnership concern of the respondent, namely, Everest Business House was liable for payment of the existing debt or liability to the complainant/firm. The learned Senior Counsel on behalf of the respondent heavily banks upon the aforesaid reply of the complainant in course of his cross examination. However, the materials on record in the form of documentary evidence p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess mentioned was incorrect or letter was never tendered or the report of the postman was incorrect. 27. It is argued on behalf of the appellants that when the payee dispatches a notice under registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the General Causes Act would be attracted and the requirement of clause (b) of the proviso to Section 138 of the N.I Act would stand complied with and cause of action to file the complaint would arise on the expiry of the period prescribed in clause (c) of the said proviso for payment by the drawer of the cheque. 28. In is contended under Section 114 of the Evidence Act the Court may presume the existence of certain facts which it thinks rightly to have happened. It is submitted by the learned Advocate for the appellant that in the present case notice demanding payment of the cheque amount was issued to the opposite party under registered post with AD but it was returned stating "Not Known". Before the return of the letters, a letter was addressed to the Post Master General, Council House Street on 21st January, 2016 requesting to issue certificate of delivery of said notice. Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation that 'giving notice' in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer at his correct address. 31. In respect of Criminal Appeal No.715 of 2018 arising out of CS-0082901 of 2016 it appears that demand notice was sent to the accused on 4th April, 2016. The copy of the said notice is marked Exhibit-24 during trial of the case. On 2nd May, 2016 the learned Advocate for the complainant wrote a letter to the Director, GPO Kolkata requesting him to inform as to whether the demand notice was actually delivered to the accused or not. The Director, GPO Kolkata by a letter dated 4th May, 2016 informed that the notice sent under registered post vide transaction No.EW209803328IN on 5th April, 2016 was duly delivered on 6th April, 2016. The said report is marked as Exhibit-26 and 27 series during trial of the case. 32. In view of postal report, this Court has no hesitation to hold that in connection with complaint case No.CS0082901/16, demand notice was duly served upon the accused. 33. For the reasons stated above this Court is of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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