IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 Crl.L.P..No. 1044 of 2010() --------------------------- CC.618/2001 of JUDL.M.F.C.-I,ERNAKULAM .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ P.B.UNNIKRISHNAN, C.F.22, FACT TOWNSHIP, UDYOGAMANDAL,ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.C.A.MAJEED SRI.K.H.ASIF RESPONDENT(S): ACCUSED NO.2 --------------------------- 1. STATE OFKERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. APPUKUTTAN.K.K., PARTNER, M/S. BHARAT STEEL, 52, KIKA STREET, 1 FLOOR, GULALWADI, MUMBAI. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.1044 of 2010 ----------------------------------------------- Dated 27th October, 2010. O R D E R This petition is for special leave. 2. The petitioner is the complainant. He filed a complaint against first and second accused, alleging offence under Section 138 of the Negotiable Instruments Act. According to the appellant/complainant, the first accused borrowed Rs.1,15,500/- from the complainant and he issued a cheque (Ext.P1) for discharge of the said amount. The first accused is the Sales Executive of the firm and second accused is the partner of the firm. The cheque was dishonoured for the reason “funds insufficient”. A lawyer notice was issued, but the second accused sent a reply denying the allegation in the notice. The first accused sent a reply, admitting his liability. Both the accused did not pay the amount. Therefore, the complaint was filed. 3. PW1 and PW2 were examined and Exts.P1 to P4 series were marked on the side of the prosecution. The second accused marked Ext.D1 on his side. The first accused was Crl.L.P. No.1044/10 2 absconding and the case was split. Both of them originally absconded and the case against second accused was proceeded with, when he appeared. 4. On an analysis of the evidence on record, the court found that the prosecution has failed to establish that the second accused issued the cheque and committed the offence under Section 138 of the Negotiable Instruments Act. 5. According to the learned counsel for the petitioner, the second accused is a partner of the firm and he is liable to pay the amount covered by the cheque, which was drawn on the account maintained by the firm, M/s.Bharat Steel. On going through the order under challenge, I do not find that the contention is sustainable. On a reading of the complaint and the order under challenge, it is clear that the proceedings were not initiated against the firm. 6. The Sales Executive of the firm was shown as the first accused and the partner of the firm was arrayed as the second accused in their personal capacity. The case of the Crl.L.P. No.1044/10 3 complainant is that the first accused executed Ext.P1 cheque and it has come out in evidence that the cheque was drawn from an account maintained by the firm, M/s.Bharat Steel. It appears from the order under challenge that the first accused has no authority to execute such a cheque. It is also in evidence that the account was closed long back. 7. Since the complainant has no allegation that the firm has committed the offence under Section 138 of the Negotiable Instruments Act, the partner of the firm will not have any liability for the said offence, especially since requirements under Section 141 of the Negotiable Instruments Act are not satisfied. The trial court found that the second accused has not issued the cheque to the complainant and he had not borrowed any amount from the complainant. In Ext.D1 notice sent by the second accused, he specifically stated that he had not borrowed any amount and the first accused does not have any authority to borrow any amount of behalf of the firm. In the above circumstances, there is no ground to interfere with the Crl.L.P. No.1044/10 4 order under challenge. I am not inclined to grant leave to file the appeal against the impugned order. This Leave Petition is dismissed. K.HEMA, JUDGE. tgs