Bombay High Court
Shyamsundar S/O Pannalalji Rathi vs Rameshchandra S/O Harivallabh ... on 11 December, 2017
Bench: R. B. Deo
apeal24.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.24 O
F 2016
Shri Shyamsundar s/o Pannalalji Rathi,
Aged about 65 years,
Occupation: Business,
Resident of Arvi,
Tah. Arvi, District Wardha. ....... APPELLANT
...V E R S U S...
Shri Rameshchandra s/o Harivallabh Bisani
Aged Adult, Occupation: Business,
Resiodent of Bharat Housing Society,
Civil Lines, Near State Bank of India,
Treasury Branch, Wardha,
Tah. & District Wardha. ....... RESPONDENT
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None for the Appellant.
None for the Respondent.
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CORAM: ROHIT B. DEO , J.
DATE: th
11 DECEMBER,
7 .
ORAL JUDGMENT
1] None present for the appellant or the respondent.
2] In view of the absence of the counsels, I have
requested Ms. T.H. Udeshi, the learned Additional Public
Prosecutor to assist the Court. With the fair and able assistance of
Ms. Udeshi the record is scrutinized and the appeal is being
decided on merits in view of the dictum of the Hon'ble Supreme
Court in Bani Singh and others vs. State of Maharashtra, (1996) 4
SCC 720.
3] The appellant assails the judgment and order dated
18.12.2013 passed by the Judicial Magistrate First Class, Arvi,
District Wardha in Summary Criminal Case 542/2007, by and
under which, the respondent-accused is acquitted of offence
punishable under section 138 of the Negotiable Instruments Act,
1881 ('Act' for short).
4] The appellant instituted proceedings under section
138 of the Act, the gist of which was that the accused was then
holding power of attorney on behalf of Balaji Traders, which is a
partnership firm in which the complainant had invested certain
amount.
5] According to the complainant, the accused, misusing
the power of attorney, withdrew certain amounts from the said
firm. The complainant upon coming to know of the said
withdrawal demanded return-refund of the amount invested by
the complainant in the said partnership firm. Towards discharge of
the said liability, the accused issued cheque for Rs.2,00,000/-
dated 15.09.2006, which was presented for encashment on
02.03.2007 and was dishonoured due to insufficient funds in the
account of the accused. The complainant issued the statutory
notice, which was not complied with and the complaint under
section 138 was instituted.
6] The complainant has examined himself as C.W.1.
He admits, that Balaji Traders is a partnership firm of three
partners. Smt. Sandhya Rathi, who is one of the partner is the wife
of the complainant and the second partner is the Piyush Rathi is
the nephew of the complainant. It is admitted by the complainant
in the cross-examination, that he has no documentary proof to
show that he gave any amount to the accused individually. It is
admitted by the complainant that he has not produced on record
the power of attorney which according to the complainant the
accused has misused. The complainant further admits that any
power of attorney on behalf of Balaji Traders would require
signature of both his wife and nephew. The complainant admits
that the accused is neither the Director nor the Secretary nor any
other officer in the Balaji Traders.
The fatal admission is that the disputed cheque was
issued for and on behalf of Balaji Traders and that the cheque had
nothing to do with the personal account of the accused.
The complainant admits that he has not disclosed as to how much
amount he has invested in Balaji Traders. The complainant has not
produced on record the accounts to show that he has invested in
Balaji Traders.
7] The learned Magistrate has recorded a finding inter
alia relying on the judgment of Apex Court in Aneet Hada vs.
Godfather Travels and Tours Pvt. Ltd. reported in (2012) 5 SCC 661
that the complaint is not maintainable. The view is not only a
possible view, but the only view which could have been taken in
the teeth of the evidence on record and the enunciation of law by
the Apex Court.
8] Concededly, the cheque was issued for and on behalf
of the Balaji Traders. The said firm comprises three partners,
including the wife of the complainant and his nephew.
The partners are not arrayed as accused. The firm, which is indeed
an association of persons, could have been impleaded in the trade
name in view of the explanation (a) to section 141 of the Act
which defines company to mean "(a) "company" means any body
corporate and includes a firm or other association of individuals".
Moreover, the only allegation is that the accused holds a power of
attorney on behalf of the firm, which document is in any event not
produced on record. Arguendo, even if it is assumed that the
accused held a power of attorney on behalf the partnership firm, it
is inexplicable as to why and how the accused could be ipso facto
responsible for the liability of the firm. Be that as it may, I do not
find any perversity in the judgment of acquittal.
9] The complaint is frivolous, to say the least and was
clearly not maintainable. I do not see any compelling reason to
interfere with the judgment of acquittal.
10] Since there is no appearance on behalf of either the
appellant or the respondent, I refrain from imposing costs.
The appeal is dismissed.
JUDGE
NSN
