Shri.Suraj Kempanna Kochari vs Shri.S.S.Sonali
2022 Latest Caselaw 4723 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 14TH DAY OF MARCH 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

           CRIMINAL APPEAL NO.100264 OF 2019

BETWEEN

SHRI.SURAJ KEMPANNA KOCHARI
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O- SINDOLLI CROSS, SAMBRA ROAD,
BASAVAN KUDACHI, BELAGAVI,
TQ AND DIST-BELAGAVI.
                                          ...PETITIONER

(BY SRI. SANTOSH.B.RAWOOT, ADVOCATE)

AND
1.     SHRI. S. S. SONALI
       GAJANAN COMPLEX,
       C.N. KODLI BUILDING,
       R/O-H.NO.888, BAZAR PETH
       NEAR PARISHWAD CROSS,
       KHANAPUR, TQ: KHANAPUR,
       DIST: BELAGAVI-591106.

2.     SHRI. S.G. NILAJKAR
       R/O. CHANAKEBAIL,
       AT/POST. BURANAKE, TQ. KHANAPUR,
       DIST. BELAGAVI-591106.
                                      ...RESPONDENTS

(BY SRI. VITTHAL S TELI, ADV., FOR R1 AND R2 )
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       THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF
CR.P.C., SEEKING TO ALLOW THE APPEAL BY SETTING
ASIDE THE JUDGMENT AND ORDER DATED 04/05/2019
PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS-V
COURT BELAGAVI, IN CRIMINAL CASE NO.1805/2017 FOR
THE OFFENCE PUNISHABLE U/S 138 OF N.I. ACT AND
ALLOW THE COMPLAINT OF THE APPELLANT AS PRAYED
FOR.


       THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

The appellant, who is the complainant has filed a

private complaint under section 200 of Cr.P.C., for the

offence punishable under section 138 of the Negotiable

Instruments Act, 1881 (for short "N.I.Act") alleging that

the respondents-accused had borrowed a sum of

Rs.2,00,000/- and had issued a cheque for the said

amount in favour of the appellant-complainant towards

discharge of loan liability. It is further alleged that when

the said cheque was presented for realization, the same

was returned with an endorsement "insufficient funds".

Thereafter, he issued notice to the accused-respondents

calling upon them to pay the cheque amount within a

period of thirty days from the date of receipt of notice.

2. The respondents having failed to pay the said

amount, the appellant-complainant filed private

complaint. The complainant, to prove his case, examined

himself as PW1 and marked documents at Ex.P1 to Ex.P7.

The respondents-accused did not choose to lead their

evidence. The Trial Court after examining the evidence on

record held that the alleged cheque was issued by the

partnership firm of which the appellant-complainant as

well as respondents-accused were partners and as such,

the complaint filed by the appellant-complainant without

arraigning the firm as a party to the proceedings, is not

maintainable. Accordingly, dismissed the complaint.

Taking exception to the same, this appeal is filed.

3. Learned counsel appearing for the appellant-

complainant submits that the material on record clearly

discloses that the amount was lent to the respondents in

their individual capacity and not as partners of the firm

and as such, the impugned judgment passed by the Trial

Court requires to be set aside.

4. On the other hand, learned counsel appearing

for the respondents would submit that the appellant-

complainant being one of the partners has misused the

cheque and in the absence of appellant-complainant

having not arraigned the firm as a party to the

proceedings, the learned Magistrate has rightly dismissed

the complaint.

5. I have considered the submissions made by

the learned counsel for the parties.

6. The allegation in the complaint is that the

respondents-accused had borrowed a sum of

Rs.2,00,000/- in the individual capacity and not as

partners and to discharge the said liability, they had

issued a cheque for a sum of Rs.2,00,000/-, which was

dishonored when presented for realization for the reason

"insufficient funds". It is undisputed that the cheque

belongs to the firm and not to the accused in their

individual capacity and in the absence of any other

material produced by the complainant that the accused in

their individual capacity had borrowed loan, the learned

Magistrate taking into account that the firm was not

arraigned as party to the proceedings has dismissed the

complaint as not maintainable since it is mandatory to

arraign the firm as party so as to fasten the vicarious

liability on the partner for dishonour of cheque as

specified under section 141 of the N. I. Act. The

impugned judgment passed by the learned Magistrate

after appreciation of evidence on record cannot be faulted

with.

7. In view of the preceding analysis, I do not find

any illegality or infirmity in the judgment passed by the

learned Magistrate. Accordingly, I pass the following:

ORDER

The appeal stands dismissed.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE YAN