Karnataka High Court
Ramanathsa T.Nakod vs Mohan Lokansa Dalbhanjan on 4 January, 2023
Bench: Rajendra Badamikar
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CRL.A No. 100082 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 100082 OF 2014
BETWEEN:
RAMANATHSA T.NAKOD
MANAGING PARTNER OF
M/S. S T NAKOD
MERCHANT AND COMMISSION
AGENT, NEW COTTON MARKET
HUBLI
.....APPELLANT
(BY SRI. M L VANTI, AMICUS CURIAE)
AND:
MOHAN LOKANSA DALBHANJAN
M/S. MOHAN TRADING CO.
MERCHANT and COMMISSION AGENT
NEW COTTON MARKET, HUBLI
.....RESPONDENT
(BY SRI. C S NAGASHETTI, ADVOCATE)
Digitally signed by
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
SUJATA SUBHASH
PAMMAR
Location: HIGH COURT
OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF TRIAL
COURT ON THE FILE OF THE JMFC II-COURT, HUBLI IN
C.C.NO.228/2007 DATED 20.01.2014 AND FURTHER BE TO CONVICT
THE ACCUSED U/S 138 OF NI ACT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100082 of 2014
JUDGMENT
This appeal is filed by the appellant/complainant
under Section 378(4) of Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.', for short) challenging
the judgment of acquittal passed by the learned JMFC-II
Court, Hubballi, in C.C.No.228/2007 dated 20.01.2014
whereby the learned Magistrate has acquitted the
accused/respondent herein for the offence punishable
under Section 138 of Negotiable Instruments Act, 1881
(hereinafter referred to as 'N.I. Act', for short).
2. Brief factual matrix leading to the case are as
under:
That the complainant and accused were in good
terms and had friendly business relationship having
business transactions amongst them since many years.
That the complainant on good faith used to sell goods to
the accused on credit basis and in respect of business
transactions, accused was required to pay Rs.1,05,000/-
as per the accounts maintained by the complainant. In
CRL.A No. 100082 of 2014
respect of this due, the accused had issued a cheque for a
sum of Rs.10,000/- dated 02.08.2006 in respect of legally
enforceable debt. When the said cheque was presented, it
was bounced for insufficient funds. Thereafter the
complainant had issued a legal notice to the accused and
accused gave a evasive and vague reply. Hence, the
complainant had filed a complaint under Section 200 of
Cr.P.C. against the accused alleging that the accused has
committed an offence under Section 138 of N.I. Act.
3. After recording the sworn statement, the
cognizance was taken by the learned Magistrate and
summons came to be issued to the accused. The accused
appeared through his counsel and was enlarged on bail.
He was provided with prosecution papers. He denied the
accusation made against him.
4. Then the complainant got examined himself as
PW-1 and placed reliance on 8 documents marked at
Exs.P-1 to P-8. After the conclusion of evidence of the
complainant, the statement of accused under Section 313
CRL.A No. 100082 of 2014
of Cr.P.C. was also recorded and accused denied the
incriminating materials appeared against him. The
accused was examined himself as DW-2 and examined one
witness as DW-1 and he placed reliance on 7 documents
on his behalf at Exs.D-1 to D-7.
5. After hearing the arguments and appreciating
the oral and documentary evidence, learned Magistrate
has acquitted the accused of the charges.
6. Initially the appellant/complainant was
represented by his counsel and later on his counsel has
filed a retirement memo. In fact, thereafter notice came
to be issued to the complainant and there was no
representation. However, instead of dismissing the
complaint, the Court was kind enough to appoint the
Amicus Curiae though there was no need to do so.
7. Heard the arguments advanced by the learned
Amicus Curiae appearing for the appellant/complainant
and learned counsel for respondent/accused. Perused the
records.
CRL.A No. 100082 of 2014
8. Having heard the arguments and on perusing
the records, it is evident that the transaction was between
two firms i.e., M/s. S.T. Nakod and Company and M/s.
Mohan Trading Company. The complaint is filed by one
Ramanathsa T. Nakod, who was examined as PW-1. He
claims to be the authorized person to lodge the complaint
but interestingly, he has not produced any authorization
issued to him on behalf of the firm/company to prosecute
the matter. Further, the complaint is not filed by the
company/firm. Admittedly, there is no personal
transaction between the complainant and accused and
transaction was between two firms.
9. Even on perusal of Ex.P-1, it is evident that
cheque was issued to M/s. S.T. Nakod and Company by
accused on behalf of M/s. Mohan Trading Company and it
is signed by one of the partners. Interestingly, the
complaint is not filed by the company but so called
managing partner has filed the complaint without any
authorization. Even otherwise when it is an offence said to
CRL.A No. 100082 of 2014
have committed by the company since the cheque was
issued on behalf of company and accounts pertains to
company, under Section 141 of N.I. Act, the
company/partnership firm ought to have been made as
accused but that was also not done. Hence, all the
partners or persons who are responsible for the
transactions of the firm and firm ought to have been
arrayed as accused in the complaint but the accused was
prosecuted in his individual capacity. Admittedly, the
accused has not issued the cheque in his individual
capacity. Even the notice was also issued in the individual
capacity to the accused but not issued to the firm M/s
Mohan Trading Company. Admittedly, accused is one of
the partners in the said firm.
10. Even on perusal of Ex.P-3 notice, it is evident
that it was also issued as per the instructions of the
complainant Ramanathsa Nakod, who was managing
partner of M/s. S.T. Nakod and Company but it was not
issued on behalf of company. Even on perusal of the
CRL.A No. 100082 of 2014
evidence of PW-1, it is evident that the last transaction
between M/s. S.T. Nakod and company and M/s. Mohan
Trading Company has took place on 22.01.1999 and
subsequently, the first cheque came to be issued on
02.08.2006. If this period is taken into consideration,
then it is evident that the alleged transaction is hit by the
provisions of Limitation Act. Hence, even otherwise, the
debt or liability cannot be said to be legally enforceable
liability and on this count also the complaint is bound to
fail. Admittedly, the complainant is not an authorized
person and no authorization is produced and accused was
prosecuted in his individual capacity. The firm and other
directors were not made parties though the cheque was
issued in the name of company. Looking to these facts
and circumstances, it is evident that the complainant has
failed to establish the fact that the accused has committed
an offence under Section 138 of N.I. Act in his individual
capacity. Even the complainant was not interested in
prosecuting the matter as the Amicus Curiae was
appointed. The learned Magistrate has appreciated the
CRL.A No. 100082 of 2014
oral as well as documentary evidence in this regard in
detail and appreciated the statutory provisions in this
regard in accordance with law. No illegality or infirmity is
found in the judgment of acquittal passed by the learned
Magistrate. Under such circumstances, question of
interference with the judgment of acquittal passed by the
learned Magistrate does not arise at all. Considering these
facts and circumstances, it is evident that appeal being
devoid of any merits, does not survive for consideration.
Accordingly, I proceed to pass the following:
ORDER
The appeal stands rejected by confirming the
judgment of acquittal dated 20.01.2014 passed by the
learned JMFC-II Court, Hubballi, in C.C.No.228/2007.
The fees of the learned Amicus Curiae is fixed at
Rs.2,500/-.
Sd/-
JUDGE
Naa
