M/s Gold Mohur Foods and Feeds Ltd. vs M/s Malik Farms, Javed Bhai, Partner, M/s Malik Farms, and Shaheed Bhai, Partner, M/s Malik Farms

A.S. Pachhapure

appellant has challenged the Judgment and Order acquitting the respondents for the charge u/s 138 of the Negotiable Instruments Act

[hereinafter referred to as ""the Act"" for short], on a trial held by the Add1 C.M.M., Bangalore City. Briaf facts relevant for the purpose of this

appeal are as under:

The appellant herein is the complainant, whereas the respondents are accused Nos. 1 to 3. The complainant is a Company, incorporated under the

Companies Act, 1956 and it is engaged in the business of manufacture and sale of animal feeds. The 1st accused is a firm of which accused Nos. 2

and 3 are said to be the partners and they approached the complainant to purchase the animal feeds on different occasions. The complainant had

supplied the feeds to them.

Towards payment of price of the feeds supplied, the accused is said to have issued a cheque bearing No. 554250 for a sum of Rs. 5,39,625-33,

dated 25.03.2003, drawn on Indian Bank. The said cheque was signed by one of the partners of the 1st accused.

The complainant presented the said cheque for encashment on 25.03.2003 through its banker and it returned with an endorsement of ""insufficient

funds"". The complainant issued a notice dated 05.05.2003 to the accused both by registered post and under certificate of posting. As the payment

was not made as per the demand in the said notice, within the time prescribed, a complaint came to be filed by the appellant before the trial Court

u/s 200 Cr.P.C. to initiate action against the accused for the offence punishable u/s 138 of the Act.

In pursuance of the process issued, the accused appeared and their plea was recorded. The complainant examined P.W. 1 and in. his evidence,

documents Exs. P1 to 29 ware marked. The statements of the accused were recorded u/s 313 Cr.P.C. Accused No. 3 was examined as D.W. 1

and in his evidence documents Exs. Dl to 24 were marked. The trial Court heard the learned counsel for the parties and on appreciation of the

material on record, acquitted the accused. Aggrieved by the acquittal, the present appeal has been filed.

I have heard the learned counsel for both the parties.

The point that arises for my consideration is;

Whether the appellant has made out any grounds to warrant the interference in the impugned Judgment and order of acquittal of the respondents

for the charge u/s 138 of the Act?

At the first it is necessary to note that under the provisions of Section 141 of the Act that there should be a specific averment in the complaint

that the partners were in-charge of and responsible for the conduct of the business of the Company. This averment is an essential requirement of

Section 141 of the Act end in the absence of the averment, a complaint cannot be maintained against the partners. As could be seen from the

averments in the complaint, as against accused Nos. 2 and 3, the complainant has not made any such averment that they were in-eharge of and

responsible for the conduct of the business of the 1st accused firm. Thereby, the complaint against accused Nos. 2 and 3 is not maintainable in law.

It is contended by the learned counsel for the appellant that the signatura on the cheque is not in dispute and therefore, he claims that a

presumption would arise u/s 133 of the Act having issued the said cheque towards discharge of the liability. The cheque has been produced at Ex.

P2. It is dated 25.03.2003 and the cheque number is 554250. If Ex. P29 statement of accounts/distributor ledger extract for the period from

01.04.1998 to 30.06.2004 at page Nos. 22 and 30 is perused, it reveals that cheques bearing Nos. 554249 and 554250 have been made use in

the year 2001 and 2003 respectively, wherein the cheque-Ex. P2 is dated 25.03.2003. This itself is a strong suspicious circumstance about the

cheque having been misused. It is relevant to note that under Ex. D2 letter dated 12.03.2003, the accused intimated the complainant having

stopped business dealings from 04.07.2002 and requested to return the blank undated signed cheques belonging to the firm. This letter supports

the version of the accused that relating to the business between the parties, the accused had issued some blank cheques to the complainant in the

year 2001 and the complainant conveniently and clandestinely used the said blank cheques to make a false claim. It is not in dispute that the

complainant Company obtained Karnataka Sales Tax registration only on 31.10.2000 and therefore, this company could not have made any

business dealings with the accused prior to 31.10.2000. The dealings with the firm could have been only subsequent to the said date. It is in the

evidence of D.W. 1 [accused No. 3] that in the year 1998 M/s. Hindustan Lever Limited appointed the 1st accused as the distributor for

marketing their poultry feeds in the name of ""Gold Mohar"" by the second week of October 2000. There were business dealings between M/s.

Hindustan Lever Limited and the accused in the year 1998 To substantiate this fact, a reference could be made to Ex. P29, the distributor ledger

for the period from 01.04.1998 to 30.06.2004, wherein there is a reference of transaction dated 03.12.1998, 05.12.1998, 08.12.1998 and

09.12.1998. These transactions pertain to between the 1st accused and M/s. Hindustan Lever Limited towards supply of the feeds. The

complainant has produced Exs. P9 to 27, the invoices having supplied the feeds to the 1st accused in between the period from 21.05.2002 to

02.07.2002. But as coula be seen from Ex. D16 and Ex. P29, it reveal that: the complainant has fabricated Exs.P9 to 27 when there was no

liability on the part of accused No. 1.Furthermore, the complainant having the ledger books pertaining to the transactions of the Company, has

withheld by producing only computer generated copies. It appears that when the accused called upon the complainant to pay the commission

charges of Rs. 2l, 92, 119-80 in order to avoid the payment, has issued the cheque in question, which was in their custody since 2001. The

complainant has not pleaded the transactions in the complaint and created Exs. P9 to 27 to suit his purpose and made a false claim on the basis of

the blank cheque in his custody since 2001 and therefore, the trial Court has rightly granted an Order of acquittal by proper appreciation of the

material on record. in that view of the matter, I am of the opinion that the appellant has not made out any such grounds to warrant interference in

the Order of acquittal Hence, I answer the point in negative and proceed to pass the following:

ORDER

The appeal is dismissed.