Nothing precluded the complainant to prove that though
account from which the cheque was drawn was operated in
personal name it was in fact a garb while the personal
account was in fact a business account.
If at all, it would have been a case of the complainant
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.
Therefore, the act of the accused in denying the
signatures on promissory notes does not deserve any
cognizance such as adverse inference, particularly when he is
not the signatory of the cheque.
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
Negotiable Instruments Act was not complied with.
The findings and conclusions arrived by the Magistrate
though are challenged, it is not shown that those are
erroneous either on facts or in law. The arguments advanced
before this Court are in the nature of demand than a
contention.
The result is that the conclusion drawn by the learned
Magistrate are impossible to be assailed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.346 OF 2012
Shri Pratap @ Prakash Kripaldas Chugh
vs.
Shri Manu Parumal Raghani )
CORAM : A. H. JOSHI, J.
DATE : 12th September, 2013
Citation;2014(4) MHLJ 521 Bom
Read original judgment here;click here
1] Heard.
2] Leave granted.
3] By consent of parties, appeal and application are taken
up for final hearing.
4] Applicant-the original complainant approached the Court
of Metropolitan Magistrate, Kurla, and Criminal Complaint
No.4405/SS/2007 was filed. It was a case under Section 138
of the Negotiable Instruments Act read with Section 428 of
the Indian Penal Code.
5] Complainant's version reads as follows:-
(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.
(c) Complainant gave loan of Rs.18 lakhs.
(d) Deceased Ram Chhabria delivered a cheque of
Rs.18 lakhs dated 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:-
“4. I further state that the present accused and
the aforesaid deceased person also jointly and
severally executed and signed in my presence
between 05/02/2007 and 11/02/2007, 6 promissory
notes for their said entire joint and several
liability of Rs.18,00,000/- towards me. Each of
the said 6 promissory notes is for a sum of
Rs.3,00,000/-. Annexed hereto and marked as
Exhibit “B” to B-5” are the aforesaid 6 original
promissory notes duly executed by both, the
present accused and his said partner Ram Chhabria
had brought with them at that time those 6
promissory notes already duly filled in. I am
acquainted with the signatures of 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” of the accused and said deceased Ram
Chhabria.”
(quoted from page 38 paragraph No.4 of evidence on
affidavit)
8] As regards liability of present respondent under the
cheque, the complainant has stated in his affidavit 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
eventually punished for the commission of the said
offences and also for directions to them for
repayment of compensation as provided by law,
especially under Section 357 of the Code of
Criminal Procedure, 1973.”
(quoted from page 42 paragraph No.9 of evidence on
affidavit).
9] In the cross 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.”
(quoted from page no.57 of statement of accused
u/s 313 of Cr.P.C.).
12] It is seen that accused has denied signature on
promissory note, and therefore, opinion of handwriting expert
was sought. The handwriting expert has given an opinion that
the signatures on promissory note are the signatures of the
accused.
13] In the 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.:-
(i) The definition of “drawer”.
(ii) Scope of Section 138 as against the “drawer”.
(iii) Scope of Section 141 to include Directors of
company who may be directly involved in the
transactions.
15] Upon the said discussion, the learned trial Court
recorded finding as follows:-
(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 a transactional integrity between the
cheques and the promissory notes in connection
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
accused be held liable even under criminal liability.
17] This Court has given curious and peaceful consideration
to the submission advanced.
18] 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] It is a settle principle in criminal jurisprudence that
the criminal law has to be interpreted strictly and not
liberally. In order to achieve advancement of the object of
criminal law, the law has to be construed in the right spirit
which does not mean that a construction has to be
overstretched to exceed the aims and objects for legislature.
22] Nothing precluded the complainant to prove that though
account from which the cheque was drawn was operated in
personal name it was in fact a garb while the personal
account was in fact a business account.
23] If at all, it would have been a case of the complainant
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, the act of the accused in denying the
signatures on promissory notes does not deserve 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
Negotiable Instruments Act was not complied with.
26] The findings and conclusions arrived by the Magistrate
though are challenged, it is not shown that those are
erroneous either on facts or in law. The arguments advanced
before this Court are in the nature of demand than a
contention.
27] The result is that the conclusion drawn by the learned
Magistrate are impossible to be assailed. The judgment is
neither shown to be adverse or contrary to law.
28] 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.)
Print Page
account from which the cheque was drawn was operated in
personal name it was in fact a garb while the personal
account was in fact a business account.
If at all, it would have been a case of the complainant
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.
Therefore, the act of the accused in denying the
signatures on promissory notes does not deserve any
cognizance such as adverse inference, particularly when he is
not the signatory of the cheque.
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
Negotiable Instruments Act was not complied with.
The findings and conclusions arrived by the Magistrate
though are challenged, it is not shown that those are
erroneous either on facts or in law. The arguments advanced
before this Court are in the nature of demand than a
contention.
The result is that the conclusion drawn by the learned
Magistrate are impossible to be assailed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.346 OF 2012
Shri Pratap @ Prakash Kripaldas Chugh
vs.
Shri Manu Parumal Raghani )
CORAM : A. H. JOSHI, J.
DATE : 12th September, 2013
Citation;2014(4) MHLJ 521 Bom
Read original judgment here;click here
1] Heard.
2] Leave granted.
3] By consent of parties, appeal and application are taken
up for final hearing.
4] Applicant-the original complainant approached the Court
of Metropolitan Magistrate, Kurla, and Criminal Complaint
No.4405/SS/2007 was filed. It was a case under Section 138
of the Negotiable Instruments Act read with Section 428 of
the Indian Penal Code.
5] Complainant's version reads as follows:-
(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.
(c) Complainant gave loan of Rs.18 lakhs.
(d) Deceased Ram Chhabria delivered a cheque of
Rs.18 lakhs dated 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:-
“4. I further state that the present accused and
the aforesaid deceased person also jointly and
severally executed and signed in my presence
between 05/02/2007 and 11/02/2007, 6 promissory
notes for their said entire joint and several
liability of Rs.18,00,000/- towards me. Each of
the said 6 promissory notes is for a sum of
Rs.3,00,000/-. Annexed hereto and marked as
Exhibit “B” to B-5” are the aforesaid 6 original
promissory notes duly executed by both, the
present accused and his said partner Ram Chhabria
had brought with them at that time those 6
promissory notes already duly filled in. I am
acquainted with the signatures of 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” of the accused and said deceased Ram
Chhabria.”
(quoted from page 38 paragraph No.4 of evidence on
affidavit)
8] As regards liability of present respondent under the
cheque, the complainant has stated in his affidavit 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
eventually punished for the commission of the said
offences and also for directions to them for
repayment of compensation as provided by law,
especially under Section 357 of the Code of
Criminal Procedure, 1973.”
(quoted from page 42 paragraph No.9 of evidence on
affidavit).
9] In the cross 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.”
(quoted from page no.57 of statement of accused
u/s 313 of Cr.P.C.).
12] It is seen that accused has denied signature on
promissory note, and therefore, opinion of handwriting expert
was sought. The handwriting expert has given an opinion that
the signatures on promissory note are the signatures of the
accused.
13] In the 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.:-
(i) The definition of “drawer”.
(ii) Scope of Section 138 as against the “drawer”.
(iii) Scope of Section 141 to include Directors of
company who may be directly involved in the
transactions.
15] Upon the said discussion, the learned trial Court
recorded finding as follows:-
(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 a transactional integrity between the
cheques and the promissory notes in connection
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
accused be held liable even under criminal liability.
17] This Court has given curious and peaceful consideration
to the submission advanced.
18] 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] It is a settle principle in criminal jurisprudence that
the criminal law has to be interpreted strictly and not
liberally. In order to achieve advancement of the object of
criminal law, the law has to be construed in the right spirit
which does not mean that a construction has to be
overstretched to exceed the aims and objects for legislature.
22] Nothing precluded the complainant to prove that though
account from which the cheque was drawn was operated in
personal name it was in fact a garb while the personal
account was in fact a business account.
23] If at all, it would have been a case of the complainant
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, the act of the accused in denying the
signatures on promissory notes does not deserve 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
Negotiable Instruments Act was not complied with.
26] The findings and conclusions arrived by the Magistrate
though are challenged, it is not shown that those are
erroneous either on facts or in law. The arguments advanced
before this Court are in the nature of demand than a
contention.
27] The result is that the conclusion drawn by the learned
Magistrate are impossible to be assailed. The judgment is
neither shown to be adverse or contrary to law.
28] 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.)
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