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GOVIND RAM CHANANI V/S LATHA & ANOTHER , decided on Friday, January 23, 2009.
[ In the High Court of Karnataka, Criminal Appeal No. 553 of 2005 connected with Criminal Appeal Nos. 554 to 560 of 2005 . ] 23/01/2009
Judge(s) : K. RAMANNA
Advocate(s) : Mohd. Usman Shaikh. A.N. Radhakrishna.
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govind,ram,chanani,latha,and,

  "2009 (3) KantLJ 253"  







judgment - All these appeals filed by the appellant-Govind Ram Chanani stated to be the authorised representative of M/s. Alloy Steel Emporium Mathikere Bangalore under Section 378(4) of the Criminal Procedure Code 1973 to set aside the order dated 8-2-2005 passed by the 18th Additional CMM and 20th Additional Small Causes Judge Bangalore in C.C. Nos. 29538 29138 29139 28960 29540 29137 28961 and 29539 of 1999 allowing I.A. filed by the respondents/accused in the respective cases and consequently acquitted the respondents.2. The case of the appellant is that appellant-Govind Ram Chanani described himself as a proprietor M/s. Alloy Steel Emporium issued legal notice to respondents calling upon them to make good the cheque amount issued by them in favour of M/s. Alloy Steel Emporium but dishonoured by their banker for insufficient funds. The respondents did not comply with the demand of notice. Therefore appellant filed complaints against respondents for the offence punishable under Section 138 of the Negotiable Instruments Act 1881. The Court below after taking cognizance secured the presence of respondents and recorded their plea. Since the respondents pleaded not guilty the matter was posted for evidence of complainant-appellant at that time appellant filed an application in all these cases stating that in fact appellant-complainant is a partnership concern of Sri Bhom Saraogi and Smt. Anandi Devi Saraogi and that Govind Ram Chanani is in-charge and Manager of M/s. Alloy Steel Emporium and in addition to that partners of the firm executed GPA dated 1-12-1991 in his favour empowering him to do all acts which partners are concerned to do it. But while issuing demand notice to respondents and while filing the complainant inadvertently the complainant-M/s. Alloy Steel Emporium was wrongly shown as proprietary concern of Govind Ram Chanani that the said wrong description was unintentional and the same is a result of mistake. The said mistake crept in owing to improper communication. If the said mistake is rectified the same will in no way affects or prejudices the respondents. One of the partners of the firm is his wife and another partner is his brother-in-law. In fact Govind Ram Chanani is whole and sole of the said business. Therefore he sought permission of the Court by filing an application to correct the cause title as M/s. Alloy Steel Emporium represented by Mr. Govind Ram Chanani.3. The respondents herein objected the said application filed by appellant on various grounds and had also filed application under Section 258 of the Cr. P.C. in all the cases praying to dismiss the complaints contending that the complaints are not maintainable in the eye of law and the complainant cannot be allowed to correct his mistake at the belated stage and cannot allow any third party to enter appearance in the case. Hence it is prayed to dismiss the complaint.4. After hearing both sides and considering the materials placed before it Trial Court dismissed the applications filed by appellant seeking permission of the Court to correct record on the other hand allowed the applications filed by the respondents seeking for dismissal of complaints consequently acquitted the respondents. Hence these appeals. However the appellant herein is challenging only the order of acquittal passed by the Trial Court and he is not challenging in these appeals the order passed by Trial Court dismissing his application filed for correction of mistakes crept in the records.5. Heard the arguments of learned Counsel for the petitioner as well as learned Counsel for respondents. Perused the records.6. Keeping in mind the arguments advanced at the bar the point that arises for consideration is whether the order dated 8-2-2005 passed by 18th Additional CMM and 20th Additional Small Causes Judge Bangalore in the aforesaid criminal cases dismissing the complaints filed by appellant is perverse incorrect and illegal?7. It is contended by learned Counsel for the appellant that respondents who have filed application under Section 258 of the Cr. P.C. to dismiss the complaint was not at all maintainable since provisions of Section 258 of the Cr. P.C. is not applicable to private complaint filed under Section 200 of the Cr. P.C. that after dishonour of the cheques demand notice came to be issued by the appellant for which respondents have sent reply admitting the liability/transaction under the dishonoured cheques. It was contended that wrong description of the complainant will not prejudice the respondents when once they admits their liability under the dishonoured cheques. Govind Ram Chanani who is holder of the cheque in due course which was issued in favour of the partnership firm is entitled to file a complaint under Section 138 of the N.I. Act. The District Registrar of Firms issued a certificate that appellant is a partnership firm and one Bhom Raj Saraogi and Anandi Devi Saraogi are partners of M/s. Alloy Steel Emporium. The complaint filed by Govind Ram Chanani was authorised by the firm as he was looking after business affairs of the firm. Therefore mere a typographical mistake crept in filing of the complaint by the appellant describing M/s. Alloy Steel Emporium as a proprietary concern will not take away right of the appellant-complainant. Therefore it is contended that the same is a bona fide mistake and the Court below ought to have allowed the applications filed for correction of record. The learned Counsel for the appellant place before Court copy of reply notice dated 6-6-1999 issued on behalf of respondents Counsel wherein there is admission of liability by the respondents under the disputed cheques and had also produced letter of Latha Multi-Tech Enterprise dated 17-6-1998 regarding confirmation and acceptance of second charge on land and building with attested copy of deed of charge dated 9-6-1998.In support of the contentions learned Counsel for the appellant relied on the following decisions:In the case of Francis Savio a State of Kerala 1998 Cri. L.J. 4735 (Kcr.) it is held thus:(C) Negotiable Instruments Act 1881 (26 of 1881) Sections 138 8 and 9 ? Criminal Procedure Code 1973 (2 of 1974) Section 2(d) ? Dishonour of cheque ? Complainant a holder of cheque wrongly stating in complaint as holder in due course ? Mere mis description found in complaint will not render any advantage to accused.In the case of C. Prabhu v Sangam Corporation (Finance and westment) Bangalore 2002(2) Kar. L.J. 572 : 2002 DCR 422 (Kar.) it is held thus:It is open to the de jure complainant company to seek permission of the Court for sending any other person to represent the company in the Court. Thus even presuming that initially there was no authority still the company can at any stage rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company?.In the case of M/s. Bedi Sons Steels and Wires v M/s. B.G. Brothers 2002 DCR 278 it is held thus:If any defect the format of the complaint is brought to the notice then the Court can allow permission to rectify the same and in this case the Court can even allow the respondent in this individual capacity to prosecute the complaint. Consequently it has to be taken that the eligibility criteria prescribed under Section 142 of the Act have been fulfilled by the respondent because he being the payee or holder of the cheque in due course was competent to institute the complaint?.In the case of M/s. Krishna Kumar Vinod Kumar and Others v State of Uttar Pradesh and Another 2004(1) DCR 493 it is held thus:?Negotiable Instruments Act 1881 Section 138 ? Dishonour of cheque ? Wrong mention of month of November instead of December in notice ? Correction made ? Mistake due to inadvertence in typing not substantial ? Slip of Bank informing dishonour of cheque is a document of Bank ? It will unfold entire fact regarding date of dishonour of cheque ? Hypertechnical view should not be taken when material is there on record ? To reveal the substance of notice ? Order of Revisional Court affirmed?.Therefore it is submitted that the order of dismissal of complaint passed by the Court below is incorrect and illegal and that the mistake crept in filing complaint has to be rectified thus he prays for allowing of all the appeals.8. Per contra learned Counsel for respondents submitted that appellant herein has filed 12 criminal cases in some cases person who filed the complaint described himself as proprietor and in some cases he filed the complaint as partner and in some cases he has not mentioned either proprietor or partner but in the name Govind Ram Chanani. Govind Ram Chanani is neither a partner nor a proprietor of the firm-M/s. Alloy Steel Emporium and therefore he cannot file or maintain complaints under Section 200 of the Cr. P.C. The appellant has not produced any document-to show that he was a partner or proprietor of the firm. Therefore Court below has rightly dismissed the application filed by appellant seeking for correction and has rightly dismissed the complaints. It is further argued that it is not a bona fide mistake crept in the complaint and there is no provision as such in Cr. P.C. to file an application for amendment after a lapse of 5 or 6 years. Initially all the criminal cases were dismissed for non-prosecution however this Court allowed the criminal appeals filed before it by setting aside the order of dismissal. Thereafter appellant filed belated applications which are not maintainable. The averments of the complaints and memorandum of appeal are contrary to each other. Therefore Court below is right in dismissing the complaints and acquitting the respondents in all the cases. It is further contended that though the respondents have wrongly filed application under Section 258 of the Cr. P.C. for dismissal of complaint filed by complainant the Court below has rightly considered the same under Section 203 of the Cr. P.C. Hence he prays for dismissal of the appeals. In support of his contentions the learned Counsel for respondent has produced the documents i.e. Xerox copies of the revision petitions legal notice copy of deed and second charge registration certificate sworn statement and etc.9. I have carefully examined the impugned order under challenge and also various decisions referred to by learned Counsel for appellant as well as documents produced by the parties. Admittedly there was a transaction between Mts. Alloy Steel Emporium and respondents and cheques are said to have been collected by the appellant in all the cases from respondents but when those cheques when presented for encashment the same came to be dishonoured. Therefore notice was issued through lawyer by Govind Ram Chanani as a partner in some cases and in some other cases in the capacity of a proprietor. The records indicate that Govind Rain Chanani is neither a partner nor proprietor or authorised agent to file complaints or issue demand notices to respondents on behalf of Mts. Alloy Steel Emporium. The materials placed on record indicates that on 25-6-1999 demand notice was issued by Govind Ram Chanani as a proprietor of the Alloy Steel Emporium but he was neither a partner nor proprietor of the Alloy Steel Emporium. A copy of the registration certificate issued by the Registrar of Societies discloses that one Bhom Raj Saraogi and Anandi Devi Saraogi were partners of the said firm. Initially one Ajay Kumar Bhotika was also a partner of the said firm but he retired and his name has been deleted. The Govind Ram Chanani filed complaints as proprietor knowing fully well that Mts. Alloy Steel Emporium is a partnership firm but later filed application for correction of record to describe the Mts. Alloy Steel Emporium as a partnership firm after a lapse of 5 or 6 years during which few more proceedings had taken place in all the cases which amounts to filling the lacuna of the complainants case. Mts. Alloy Steel Emporium being a partnership firm the appellant cannot be permitted to file complaints in his individual capacity or as a Manager of the said firm without there being any specific written authorisation given by the partners of the said partnership firm to that effect and even any such authorisation is given by the partners of the firm. The authorised person should file the complaint only representing the said firm and not in his individual capacity or any other capacity which he is not legally entitled to do so. The benefit which is available to a firm which is a legal entity is not available to the members of partnership firm. Moreover there is no provision in Cr. P.C. to entertain such application. In order to file a private complaint for an offence punishable under Section 138 of the N.I. Act one must have a competency to file such complaint. The complainant must necessarily be a payee or holder in due course or must be an authorised person to file complaint on behalf of the payee or holder in due course. If the complaint is filed by a Manager in his personal capacity then the authorisation is required. Since M/s. Alloy Steel Emporium is a partnership firm and not a legal entity their managing partner or any authorised agent ought to have filed a complaint on behalf of the firm. Unfortunately Govind Ram Chanani who filed the complaint described himself as proprietor in some cases and as partner in some other cases suppressing the fact that Mts. Alloy Steel Emporium is a partnership firm. Only the power of attorney agent or a person authorised in writing by the payee or holder in due course of the cheque is a competent person to present the complaint as under Section 142 of the N.I. Act. Even if it is presumed that Govind Ram Chanani is looking after entire business affairs of partnership firm he cannot file such complaint without authorisation from the partners of the firm. Even though respondents admits their liability and subsequent second charge created by issuing the reply notice the same cannot be a ground to allow the application filed for rectification or correction of record even presumed for a moment that complainant be permitted to amend his cause title he cannot at any cost be permitted to rectify the error/mistake occurred in the reply notice issued in all the cases. In the eye of law Govind Ram Chanani is not a competent person to file complaints either as proprietor or as a partner or Manager of M/s. Alloy Steel Emporium even the complainant has not filed any authorisation issued by M/s. Alloy Steel Emporium to file complaints. In this regard in case of Vishwa Mitter v O.P. Poddar and Others AIR 1984 SCC: (1983)4 SCC 701 : 1984 Cri. L.J. 1 (SC) : 1984 SCC (Cri.) 29 it is held thus:If any special statue prescribes offences and makes any special provision for taking cognizance of such offences under the statute then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute?.Further Section 142(a) of the N.I. Act requires that:No Court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing made by the payee or as the case may be the holder in due course of the cheque.Thus the two requirements are that:(a) The complaint should be made in writing in contradistinction from an oral complaint; and(b) The complainant should be the payee or the holder in due course where the payee has endorsed the cheque in favour of some one else.10. Thus in the present case the only eligibility criteria prescribed by Section 142 of the N.I. Act is that the complaint must be by the payee or the holder in due course but this criteria is not satisfied as the complaint is not by the payee or by the holder in due course or by their authorised person. The law laid down by the Apex Court in the case of M/s. Shankar Finance and Investments v State of Andhra Pradesh and Others (2008) 8 SCC 536: (2008) 3 SCC (Cri) 558: 2008 AIR SCW 7493 is squarely applicable to the facts of the case. Therefore the Court below has rightly dismissed the complaints filed by appellant and rightly acquitted the respondents in all the cases. Further according to appellant the order of dismissal of complaints and acquittal of respondents passed by the Court below on the applications filed by respondents under Section 258 of the Cr. P.C. is incorrect and illegal. Of course though the respondents have filed application under Section 258 of the Cr. P.C. seeking for dismissal of complaints filed by the appellant in all the cases the Court below has rightly considered the said applications under Section 203 of the Cr. P.C. and further considering the fact that complaints filed by appellant is not maintainable in the eye of law and since the appellant issued legal notice and presented the complaints before Court in his individual capacity without any authorisation from the M/s. Alloy Steel Emporium the Court below had rightly dismissed the complaints filed by appellant consequently acquitted the respondents for the offences alleged against them in all the cases.11. Therefore on the peculiar facts and circumstances of the case there is no irregularity or illegality in the order of acquittal passed by the Court below. Hence all these appeals are dismissed.