Karnataka High Court
M/S. Meir Ismail And Co vs Sri.Mohammed Ilyas Ahmed on 12 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:45190
CRL.A No. 403 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 403 OF 2020 (A)
BETWEEN:
1. M/S. MEIR ISMAIL AND CO.
HAVING THE TRADE NAME OF
M/S. RABBANI RICE MILLS,
CHANNAGIRI ROAD,HOLEHONNUR
SHIVAMOGA DISTRICT-577 201
BY ITS PARTNER SYED AHAMED
S/O LATE MEIR ISMAIL
AGED 50 YEARS,
R/AT RUBBANI MANZIL,
K.R.PURAM EXTENSION,
SHIVAMOGGA DISTRICT-577 201
REP BY HIS GPA HOLDER
SYED KHALEEL AHMED
S/O SOYED ABDUL SALAM
AGED 44 YEARS,
Digitally R/AT K.R.PURAM,SHIVAMOGGA-577 201
signed by SHIVAMOGGA DISTRICT.
SOWMYA D ...APPELLANT
Location:
High Court (BY SRI. BHADRINATH R.,ADVOCATE)
of
Karnataka AND:
1. SRI.MOHAMMED ILYAS AHMED
S/O SHEIK MOHIDDIN
PROPRIETOR OF M/S. SONA ENTERPRISES,
R/AT NO.120,SAM MILL ROAD, MILLAGHTTA,
SHIVAMOGGA-577 201, SHIVAMOGGA DISTRICT.
...RESPONDENT
(BY SRI. S.V. PRAKASH, ,ADVOCATE)
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NC: 2023:KHC:45190
CRL.A No. 403 of 2020
THIS CRL.A FILED U/S.378(4) CR.P.C BY THE ADVOCATE
FOR THE APPELLANT PRAYING THAT THIS HONOURABLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT
DATED 30.11.2019 PASSED BY THE J.M.F.C.-II, SHIVAMOGGA
IN C.C.NO.346/2012-ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant under Section
378(4) of Cr.P.C. challenging the judgment of acquittal
dated 30.11.2019 passed by JMFC-II, Shivamogga in CC
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the trial Court.
3. The brief factual matrix leading to the case are
that, the complainant is a registered Partnership Firm and
it is represented by its partner Syed Ahmed. The partners
have executed a General Power of Attorney on behalf of the
firm appointing Sri. Syed Khaleel Ahmed as Power of
Attorney. The accused is well-known to the complainant
since several years and he approached the complainant for
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advancing a hand loan of Rs.23.00 Lakhs for purchase of
properties. The amount was advanced in installments i.e,
Rs.5.00 Lakhs on 11.10.2010, Rs.2.00 Lakhs on
08.02.2011, Rs.5.00 Lakhs on 26.02.2011, Rs.6.00 Lakhs
on 07.03.2011 and Rs.5.00 Lakhs on 16.03.2011. The
accused promised to repay the said amount within a
specified period. The accused failed to repay the amount
as promised. Hence, on repeated demands, on 28.09.2011,
the accused has issued a cheqe for Rs.23.00 Lakhs. When
the said cheque was presented for encashment, it was
returned with an endorsement 'Funds Insufficient'. Then
the complainant got issued a statutory notice and in spite of
service of notice, the accused has not paid the cheque
amount, but given an untenable reply. Hence, the
complainant has filed a complaint before the learned
Magistrate alleging that the accused has committed offence
under Section 138 of the Negotiable Instruments Act,
1881 (for short, 'N.I. Act').
4. The learned Magistrate after recording the sworn
statement and perusing the documents has taken
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cognizance of the offence and issued process against the
accused. The accused appeared through his counsel and
was enlarged on bail. The plea under Section 138 of the
N.I. Act was recorded and accused denied the same.
5. The learned Magistrate after appreciating the
oral and documentary evidence, has acquitted the accused
of the offence under Section 138 of N.I. Act by exercising
his powers under Section 255(1) of Cr.P.C.
6. Being aggrieved by the judgment of acquittal,
the complainant is before this Court by way of this appeal.
7. Heard the arguments advanced by the learned
counsel for appellant and learned counsel for respondent.
Perused the records.
8. The learned counsel for appellant/complainant
would contend that the Power of Attorney Holder is duly
authorized and the cheque and signature have been
admitted and the presumption is in favour of the
complainant under Section 139 of the N.I. Act. Hence, he
would contend that the trial Court has committed an error
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in acquitting the accused and sought for allowing the appeal
by convicting the accused.
9. Learned counsel for the respondent/accused
would support the judgment of acquittal passed by the trial
Court. He would contend that there is no proper
authorization to PW.1 and hence the prosecution itself is
invalid.
10. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:-
Whether the judgment of acquittal passed by
the trial Court is perverse, erroneous and arbitrary
so as to call for any interference by this Court?
11. It is the contention of the complainant that the
accused has availed loan to the extent of Rs.23.00 Lakhs
from the complainant on various dates and in discharge of
the said debt, a cheque dated 28.09.2011 came to be
issued. Admittedly the complainant is a Firm and it is
alleged that amount was paid in cash. When the
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complainant is a Firm, it is hard to accept the contention
that the amount was paid in cash. The evidence on record
clearly discloses that there are certain disputes between the
parties pending in OS No.253/2011 and OS No.110/2015
before the trial Court.
12. PW.1 claims that, he himself paid the amount to
the accused for purchasing the property. But, the
complaint was filed on behalf of the Firm. He admits that,
he is working as Supervisor and it is a Partnership Firm. He
admits that one Syed Farzrul Rehman, Syed Ahmed, Syed
Abdul Gafar and Akthar Fathima, are the four Partners. It
is asserted that, only Syed Ahmed has given Power of
Attorney to run the Partnership firm. But, the said Power of
Attorney is not produced. The Power of Attorney in favour
of PW.1 was executed and though the Partnership Firm is
having four partners, but authorization was given by only
one partner. This is evident from Ex.P8 (GPA). The other
three partners have not given any consent for prosecution
of accused. Further, when the allegations disclose that the
amount was paid in 5 installments and when the first
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installment itself was not repaid, the payment of
subsequent installments becomes doubtful. Though Ex.P10-
Bank Account extract is produced, but it does not disclose
that the said amount referred thereunder in Ex.P10 was
paid to the accused. The learned Magistrate has considered
all these aspects in detail. Considering the authorization of
PW.1, as the authorization was by only one of the partners
and other three partners are not authorized to prosecute
the accused, question of PW.1 prosecuting the accused on
behalf of the Firm does not arise at all.
13. Apart from that, the learned Magistrate has
appreciated the oral and documentary evidence in proper
perspective. Considering the evidence on record, the view
taken by the learned Magistrate is also a possible
conclusion and when the said view is also a possible
conclusion, the said view cannot be disturbed by the
appellate Court. Under these circumstances, no good
grounds are forthcoming for admitting the appeal. This
appeal being devoid of any merit, does not survive for
consideration. Accordingly, the point under consideration is
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answered in negative. Hence, I proceed to pass the
following:
ORDER
The appeal stands dismissed.
Sd/-
JUDGE
KGR*
