Criminal - Drawn cheque - Guilty of offence - Section 141 of Negotiable Instruments Act, 1881 - Metropolitan Magistrate held that accused was not drawer and Accused could not be held responsible under Section 141 of Act because cheque was drawn from personal account and was not drawn from account of partnership firm of which accused and deceased were partners - Hence, this Application and Appeal - Whether Magistrate had erred in holding that Accused could not be held responsible under Section 141 of Act - Held, nothing precluded complainant to prove that though account from which cheque was drawn was operated in personal name it was in fact garb while personal account was in fact business account - However Complainant had failed to demonstrate and prove nexus of personal account to be integral part of account of business - Further act of Accused in denying signatures on promissory notes did not deserve any cognizance such as adverse inference, particularly when he was not signatory of cheque - Therefore Complainant had failed to make necessary averment and to prove that at time when offence was committed Accused was in charge and was responsible for conducting business of firm/company and hence essential requirement for Section 141 of Act was not complied with - Thus findings and conclusions arrived by Magistrate though were challenged it was not shown that those were erroneous either on facts or in law - Hence conclusion drawn by Magistrate were impossible to be assailed and that judgment was neither shown to be adverse or contrary to law - Application and Appeal dismissed.
Ratio Decidendi:
"Person shall not be liable to punishment if he proves that offence is committed without his knowledge or that he has exercised."
CRIMINAL APPLICATION NO.346 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Shri Pratap @ Prakash Kripaldas Chugh )
vs.
2) The State of Maharashtra )
1) Shri Manu Parumal Raghani
CORAM : A. H. JOSHI, J.
DATE : 12th September, 2013
Citation; 2013 ALL M R (cri)3978
1] Heard.
2] Leave granted.
3] By consent of parties, appeal and application are taken
up for final hearing.
4]
of
Applicant-the original complainant approached the Court
Metropolitan
Magistrate,
No.4405/SS/2007 was filed.
Kurla,
and
Criminal
Complaint
It was a case under Section 138
of the Negotiable Instruments Act read with Section 428 of
Complainant's
version reads as follows:-
5]
the Indian Penal Code.
(a) Accused and deceased Ram Kanhyalal Chhabria
were partners of a firm. Both of them were
known to the complainant.
(b) Considering the acquaintance, they requested
for friendly loan.
ig
(c) Complainant gave loan of Rs.18 lakhs.
(d) Deceased Ram Chhabria delivered a cheque of
lakhs
dated
Rs.18
19.05.200
and
present
respondent-accused executed a promissory note
in favour of the complainant in discharge of
their joint and several liability.
(e) The cheque was dishonoured.
(f) Payment was not made inspite of service.
(g) The notice sent to Ram Chhabria was returned
with postal remark that he is dead.
6] The complainant had tendered his evidence on affidavit
for examination-in-chief
and
offered
himself
for
cross
examination.
7]
The version of the complainant relating to joint and
several liability of the accused and the deceased reads as
follows:-
I further state that the present accused and
the aforesaid deceased person also jointly and
severally
“4.
8. appln 346.12j.
executed
and
signed
in
my
presence
between 05/02/2007 and 11/02/2007, 6 promissory
for
their
said
entire
joint
and
several
notes
liability of Rs.18,00,000/- towards me.
the said 6 promissory notes is for
Rs.3,00,000/-.
Annexed
hereto
and
Each of
a sum of
marked
as
Exhibit “B” to B-5” are the aforesaid 6 original
promissory
notes
duly
executed
by
both,
the
had
brought
present accused and his said partner Ram Chhabria
with
them
at
that
time
those
ig
promissory notes already duly filled in.
the
signatures
of
6
I am
acquainted with
both
those
persons. I say that the contents of the said
promissory notes are true, I request the Hon'ble
Court to take and admit the said documents on
record
and
to
mark
the
same
as
appropriate
Exhibits and to read the said document in the
evidence in this case. I say that the aforesaid
promissory notes bear the rubber stamp impression
of the aforesaid business concern “Om Dimple Grah
Udyog”
the
accused
and
said
deceased
Ram
Chhabria.”
of
(quoted from page 38 paragraph No.4 of evidence on
affidavit)
8]
As regards
cheque,
the
liability
complainant
of present respondent
has
stated
in
his
under
affidavit
the
as
follows:-
“9.
I further state that the aforesaid acts of
commission or illegal omissions on the part of the
accused
and
his
aforesaid
deceased
partner
unmistakably fall within the mischief, ambit and
compass of the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 as
well as under Section 420 of Indian Penal Code and
thereby render them liable to be convicted and
offences
and
repayment
of
especially
also
for
directions
compensation
under
eventually punished for the commission of the said
Section
as
357
Criminal Procedure, 1973.”
to
them for
by law,
provided
of
the
Code
of
9]
In
the
cross
ig
(quoted from page 42 paragraph No.9 of evidence on
affidavit).
examination
of
the
complainant,
the
complainant has stated as follows:-
“Now the subject cheque Exh. P.3 is shown to me.
It bore the signature of deceased Ram Chhabria.
The accused is not the signatory of the subject
cheque Exh. P.3.”
(quoted from page 48 of the cross examination of the
complainant).
10]
Other evidence led by the complainant is of no much use
for the complainant's case.
11]
In
the
statement
under
Section
313
of
Cr.P.C.,
the
accused has stated as follows:-
“Q.7.
It has further come in his evidence that,
in discharge of their aforesaid joint and several
total
liability
of
Rs.18,00,000/-
towards
him,
they both thereupon handed over to him at that
time
a
post
dated
cheque
No.861642
dated
19.05.2007 drawn on Dena Bank, Kurla (W), Mumbai
branch for Rs.18,00,000/-. What do you have to say
about it?
Ans: I have no concern with the disputed cheque.”
u/s 313 of Cr.P.C.).
12]
It
is
seen
that
accused
(quoted from page no.57 of statement of accused
has
denied
signature
on
promissory note, and therefore, opinion of handwriting expert
The handwriting expert has given an opinion that
was sought.
ig
the signatures on promissory note are the signatures of the
13]
In
the
accused.
judgment,
the
learned
Magistrate
framed
two
questions which are as follows:-
“1. Whether the complainant has proved that the
accused issued a cheque drawn on his account
and on depositing the same for encashment
within the period of its validity, it was
returned unpaid by the banker of the accused
for reason “funds insufficient” and after
notice of demand in writing issued within 30
days
of
receipt
of
intimation
of
such
dishonour, the accused failed to pay amount
of said cheque within 15 days thereof?
2.
Whether the complainant has proved that he
has received subject cheque for discharge of
legally enforceable debt or liability?”
(quoted from page 64 of the impugned judgment).
14]
The learned trial Court examined in paragraph nos.12 to
17 various aspects viz.:-
The definition of “drawer”.
(ii) Scope of Section 138 as against the “drawer”.
(iii) Scope
company
Section
who
may
141
be
to
directly
transactions.
15]
Upon
the
said
include
discussion,
Directors
of
(i)
the
involved
learned
in
trial
of
the
Court
recorded finding as follows:-
ig
(a) That the accused is not a drawer.
(b) The cheque was drawn from the bank account of
Ram Chhabria who was a drawer. The accused
was not the drawer.
(c) Accused could
not be held responsible under
Section 141 of the Negotiable Instruments
Act
because
cheque
was
drawn
from
personal account of Ram Chhabria and was not
drawn from the account of Om Dimple Grah
Udyog of which accused and deceased were
partners.
16] This Court has considered the oral submissions advanced
and considered
material
relied
upon.
The
arguments
now
advanced by learned advocate is that:-
By virtue of the fiction created by law, namely
that the accused had signed a promissory notes and
the debt under the promissory notes was towards
the subject matter cheque.
There
is
cheques
a
and
8.
transactional
the
integrity
promissory
notes
between
in
the
connection
sbw
with business of Om Dimple Grah Udyog.
Therefore, for advancing the objective for which Section
138
of
Negotiable
Instruments
Act,
was
enacted,
by
doing
liberal construction, the partner of the firm i.e. present
This Court has given curious and peaceful consideration
ig
17]
accused be held liable even under criminal liability.
18]
to the submission advanced.
In the present case, drawer himself is not the accused,
and accused is not the drawer.
19]
Section 138 fastens criminal liability only against a
drawer subject to the exception as carved out under Section
141 of Negotiable Instruments Act.
20]
Section 141 of Negotiable Instruments Act does not enact
any principle such as vicarious liability in criminal Law.
It rather carves out an exception to liability which a drawer
would have under Section 138.
21]
the
It is a settle principle in criminal jurisprudence that
criminal
liberally.
law
has
to
be
interpreted
strictly
and
not
In order to achieve advancement of the object of
criminal law, the law has to be construed in the right spirit
does
not
mean
that
a
construction
has
to
be
which
22]
overstretched to exceed the aims and objects for legislature.
Nothing precluded the complainant to prove that though
account
personal
from
which
name
it
the
was
cheque
in
fact
was
a
drawn
garb
was
while
operated
the
in
personal
If at all, it would have been a case of the complainant
ig
23]
account was in fact a business account.
that though it was the the personal account, as a matter of
fact, it was an account of the firm, he ought to have proved
it by bringing before the Magistrate required legal evidence.
Any such fact cannot be presumed.
Complainant has failed to
demonstrate and prove a nexus of the said personal account to
be integral part of the account of the business.
24]
Therefore,
signatures
on
the
act
promissory
of
the
notes
accused
does
in
not
denying
deserve
the
any
cognizance such as adverse inference, particularly when he is
not the signatory of the cheque.
25]
It
is
seen
that
the
complainant
had
failed
to
make
necessary averment and to prove that at the time when offence
was
committed,
present
accused
was
incharge
and
was
responsible for conducting the business of the firm/company,
and
hence,
essential
requirement
for
Section
141
of
the
The findings and conclusions arrived by the Magistrate
though
are
challenged,
it
is
not
shown
erroneous either on facts or in law.
before
this
Court
are
in
the
contention.
those
are
The arguments advanced
nature
of
demand
than
a
The result is that the conclusion drawn by the learned
27]
that
26]
Negotiable Instruments Act was not complied with.
ig
Magistrate are impossible to be assailed. The judgment is
28]
neither shown to be adverse or contrary to law.
On the facts of the case, it is not just difficult but
it is impossible to reverse the judgment for its conversion
into conviction.
29]
Application and appeal have no merit and is dismissed.
( A. H. JOSHI, J.)
wadhwa
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