IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.08.2011 Coram: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI Crl.A.No.1551 of 2002 Chellammal .. Appellant Vs. Perumal .. Respondent Prayer: Criminal Appeal is filed under Section 378 of Criminal Procedure Code, against the judgment of acquittal dated 21.06.2002 made in Crl.A.No.34 of 2002 passed by the learned Additional District Sessions Judge/Fast Track Court No.I, Salem, reversing the judgment dated 21.02.2002 made in C.C.No.99 of 1999 on the file of the Judicial Magistrate No.I, Mettur Dam. For Appellant : Mr.K.Selvaraj For Respondent : No Appearance ------- J U D G M E N T The complainant is the appellant herein. The appeal is filed by the complainant against the acquittal of the accused/ respondent. The complainant filed a private complaint against the accused to proceed against him for the offence under Section 138 of Negotiable Instruments Act. 2.The complaint proceeds as if the complainant/individual is the Managing Partner of one Navarasam Finance and the accused is running a contract business in the name and style of 'R.V.B. & Company' and the accused/individual used to borrow money from Navarasam finance for his business purpose and he borrowed amounts of Rs.30,000/-, Rs.25,000/- and Rs.1,00,000/- on different dates viz., 19.10.1995, 26.09.1996 and 21.10.1996 respectively and he did not repay the principal and entire interest despite repeated demands made by the complainant but the accused issued cheque for Rs.2,15,000/- on 21.07.1999 towards the discharge of entire principal and interest. As the cheque was issued only in the name https://hcservices.ecourts.gov.in/hcservices/ of Navarasam Finance, the complainant presented the cheque for collection in his capacity as partner of Navarasam Finance and the same was returned for want of sufficient funds on 04.09.1999. 3.The complainant issued statutory notice on 06.09.1999 and the same was received on 09.09.1999, but the accused did not either reply the notice or discharge the loan amount thereby, committed the offence punishable under Section 138 of Negotiable Instruments Act. 4.The complainant in support of his theory, examined himself and the managers of the bank in which both the complainant and the accused firms held accounts as P.W.1 to P.W.3 and produced the cheque in question, return memos, office copy of the statutory notice, postal acknowledgement, extract of cheque return register, statement of bank account of the complainant as Ex.P1 to P7. The accused/respondent examined himself as D.W.1 and produced the receipt issued in his name by Navarasam Finance, Venkateswara Finance, and Thirumalai Finance as Ex.D1 to D21 in support of his defence that he paid entire principal and interest and discharged his liability. 5.The trial Court on the basis of available evidence arrived at a conclusion that the cheque in question was issued by the accused towards discharge of the amount under three loan transactions to the complainant and the same was presented for collection but returned for want of sufficient funds and despite statutory notice, the liability was not discharged by the accused. 6.Aggrieved against the same, the accused preferred Crl.A.No.34 of 2002 before the lower appellate Court. The lower appellate court disagreed with the trial Court in so far as the maintainability of the complaint against the managing partner of the accused firm without impleading the partnership firm as a party. The lower appellate court acquitted the accused on the premises that the complaint filed against the managing partner without partnership firm was not against proper person who committed the offence. Hence, this further appeal before this court by the complainant. 7.Heard the serious arguments made on the side of the learned counsel for the appellant. 8.The learned counsel for the appellant has by citing the authorities reported in Manimekalai Vs. Chapaldas Kalyanji Sanghvi [1995 Cri. L.J. 1102 Madras High Court], Anil Hada Vs. Indian Acrylic Ltd., [2000 (1) SCC 1] and T.Stanes & Co. Ltd., Vs. https://hcservices.ecourts.gov.in/hcservices/ A.Jaffarullah [2001 (10) SCC 78] vehemently argued that one of the partners of the firm can be prosecuted without prosecuting the firm and the partner of the firm cannot escape from penal liability for any failure to prosecute the company. It is true that the submission made by the learned counsel for the appellant is fortified by the observation of the Hon'ble Apex court and our High Court in the authorities cited above. However in my considered view, the above decision is not applicable to the facts of the present case for the following reason:- In the instant case unlike the case dealt with by Hon'ble Supreme Court and our High Court in the authorities above cited, the complaint proceeds as if the respondent/individual, borrowed the amount for his business purpose whereas the cheque was issued by him in his capacity as the managing partner of the partnership firm. It is not disputed that both the drawer and drawee of the cheques are the partnership firms, whereas the complainant/Chellammal is the managing partner of the drawee firm and the accused is the managing partner of the drawer firm. The same would reveal that the transaction is not between two individuals who happen to be the managing partner of the two firms but it was between two firms. Whereas the complaint is filed by the individual against the individual and the complaint proceeds as if the respondent/individual borrowed money from the complainant's firm and in that event, the complaint ought to have been filed in the name of the firm represented by his managing partner. As a matter of fact, it is the specific case of the complainant/Chellammal that she filed the present complaint only in the capacity of the managing partner of the firm on the strength of letter of authorisation given by the company to file the complaint. But no such authorization letter was produced by the complainant and the complaint was also not filed in the name of the firm but only in the name of the individual. 9.As far as the accused is concerned, the individual is shown as the respondent/accused in the complaint as if he borrowed the money for his business purpose. The complainant only incidently referred to the name of the partnership firm of the accused having accused as its managing partner and the specific case alleged is that liability was incurred by the individual. Whereas the liability was, as seen from the cheque in question, incurred by the company and the accused Perumal is only the signatory of the cheque on behalf of the company and both the courts below have proceeded on one hand, that the amount was borrowed for business purpose and on the other hand, rendered the finding that the amount was borrowed by the respondent/Perumal for his business purpose and the cheque was issued by him towards the discharge of the amount borrowed. https://hcservices.ecourts.gov.in/hcservices/ 10.The judgment of the Hon'ble Supreme Court reported in Anil Hada Vs. Indian Acrylic Ltd., [2000 (1) SCC 1] laid down the principle that though the partnership firm need not be arrayed as one of the accused, the partnership firm would be held guilty for the offence under Section 138 of Negotiable Instruments Act and any one of the partners shall be prosecuted for the offence so committed by the company. 11.In this case, it is not alleged that partnership firm is the borrower but the complaint is filed against one of the partners. But the complaint proceeds as if the liability is incurred by the respondent/accused for his business purpose and such case of the complainant is accepted by the Court below. Hence, the trial court ought to have acquitted the accused for want of any finding against the company. However, the learned counsel for the appellant would appeal to this Court to remand the matter for fresh hearing for want of specific pleadings regarding the company's liability. But when the complainant categorically says that the named individual is the accused, the question of remanding the case so as to ascertain as to whether the company committed the offence or not and as to whether the partner is to be sentenced for the offence committed by the company does not arise herein. Viewing from any angle, the order of acquittal of the accused by the trial court though on different grounds is liable to be confirmed. In the result, the Criminal Appeal is dismissed and the judgment of acquittal dated 21.06.2002 made in Crl.A.No.34 of 2002 passed by the learned Additional District Sessions Judge/Fast Track Court No.I, Salem is hereby confirmed. Sd/- Assistant Registrar / True copy / Sub Assistant Registrar DP https://hcservices.ecourts.gov.in/hcservices/ To 1 The Judicial Magistrate, No.I, Mettur Dam. 2 Do thro the Chief Judicial Magistrate Salem. 3.The Additional District Sessions Judge/Fast Track Court No.I, Salem. 4.The Public Prosecutor, High Court, Madras. Crl.A.No.1551 of 2002 MG [CO] RR 11/11/2013 https://hcservices.ecourts.gov.in/hcservices/