Philip, Managing Partner, Polymer Packs, Moolamkuzhy, Kochi-2 v. Malanad Curry Powder and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 CRL.A.No. 207 of 2001() ----------------------CC.787/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... APPELLANT: - -------------- PHILIP, MANAGING PARTNER, POLYMER PACKS, MOOLAMKUZHY, KOCHI-2. BY ADV. SRI.THOMAS CHAZHUKKARAN RESPONDENTS: --------------- 1. MMALANAD CURRY POWDER, REP. BY MRS. ANIE ABRAHAM, MANAGING PARTNER, MUTTUCHIRA. 2. T.D. DEVASIA, PARTNER, MALANAD CURRY POWDER, MUTTUCHIRA. 3. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY P.P.SRI. MUHAMMED PUZHAKKARA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.A.No.207 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of December, 2008 ## **JUDGMENT** This appeal, which is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act, is directed against the order of acquittal passed by the trial court. 2. By the impugned judgment, the court below held that the appellant/complainant had failed to prove the charge against respondents 1 and 2/accused in as much as the firm which was represented by the accused had not been impleaded in the case and also since no statutory notice had been issued to the firm on behalf of which three dishonoured cheques, namely Exts.P1,P3 and P5 were issued. 3. The case of the appellant/complainant before the court below was that accused 1 and 2, who were respectively Managing Partner and Partner of M/s. Malanad Curry Powder , had issued Exts.P1, P3 and P5 cheques towards the value of certain goods purchased from the complainant, who was the Managing Partner of M/s. Polymer Packs, Kochi-2. The three cheques were dishonoured when they were presented for enchashment due to insufficiency of funds in the account of the accused. Separate statutory demand notices were issued to the two accused. While accused No.1 refused to accept the notice, accused No.2 accepted the notice addressed to him. The two accused did not discharge the liability in spite 2 ## Crl.A.No.207/01 of the demand notice. Hence, the complaint. 4. The appellant/complainant was examined as PW1. Exhibits P1 to P18 were also marked on his side. There was no oral or documentary evidence on the side of the accused. 5. The defence set up by the accused, as is discernible from the questions put in the course of cross examination and also from the statement made by the accused while they were questioned under Section 313 of the Code of Criminal Procedure, appears to be that the cheques happened to be dishonoured since the firm had been closed down. Significantly the two accused while being questioned under Section 313 of the Code had candidly admitted that the cheques were infact issued to the complainant and also that they were delivered along with the order form. 6. The learned Magistrate proceeded to hold that the Managing Partner had not been authorised to file the complaint against the accused. According to the learned Magistrate, the partnership deed did not contain any clause which enabled the Managing Partner to file a complaint for and on behalf of the firm. 7. I have carefully perused Ext.P15 partnership deed. I am unable to agree with the view taken by the learned Magistrate. In this context, it may be noticed that the complainant firm was a registered establishment and it was an assessee under the Kerala General Sales Tax Act. The accused had never questioned the assertion made by the 3 Crl.A.No.207/01 complainant that he was the Managing Partner of the firm and also that the accused had had business transaction with the complainant- firm. 8. As mentioned earlier, the specific case of the accused was that the cheques had been delivered to the complainant along with the order form. But, the cheques could not be honoured since the accused firm had been closed down subsequently. 9. Having carefully gone through the deposition of PW1, I am satisfied that the finding entered by the learned Magistrate that the appellant had no authority to represent the firm in his capacity as the Managing Partner cannot be sustained at all. In **Nasar v. State of Kerala** [2008(1) KLT 28], it has been held that any partner including Managing Partner who is an agent of the firm is entitled to file a complaint on behalf of the firm. Apart from some bald suggestions that were made in the course of cross examination, the accused had not seriously disputed the status of the complainant as the Managing Partner of the firm. In that view of the matter, I have no hesitation to set aside the finding of the learned Magistrate and hold that the appellant was entitled to prosecute the accused in his capacity as the Manging Partner of the firm. 10. The other view taken by the learned Magistrate in the impugned order is that the complainant was incompetent in as much as the accused firm, on behalf of which the 4 ## Crl.A.No.207/01 purchase was made by the two accused, was not impleaded. Admittedly, the two accused are Managing Partner and Partner respectively of the firm. More importantly, the two accused were signatories in the three cheques in question. They had never disputed their signature nor had they disputed the fact that cheques were executed by them and delivered to the complainant in discharge of a legally enforceable debt. The only plea raised by the accused was that the cheques happened to be dishonoured since the firm was closed down. The learned Magistrate took the view that in the absence of the accused firm on the party array, the Managing Partner and Partner could not have been prosecuted. The learned Magistrate had referred to a decision of their Lordships of the Supreme Court in this connection, namely **Anil Hada v. Indian Acrylic Ltd** . reported in [2001 (1) KLT 141 (SC)]. But, the learned Magistrate had apparently omitted to notice Paragraphs 13 and 21 of the above judgment. After noticing the provisions contained in Section 131 of the Code, the Apex Court had held that three categories of persons can be discerned from the provisions contained in Section 141 namely: - i. The company which committed the offence. - ii. Everyone who was in charge of and was - responsible for the business of the company. - iii. any other person who is a Director or a Manager or a Secretary or Officer of the Company, with whose 5 ## Crl.A.No.207/01 connivance or due to whose neglect the company has committed the offence. 11. It may be noticed that the accused did not have a case that they were not the Managing Partner and Partner of the firm in question. As mentioned earlier, the accused also did not have a case that they had not issued the cheques in discharge of a legally enforceable debt. For the mere reason that the firm as such was not made a party in the complaint, it cannot be said the the two accused, who were cosignatories in the cheques, could not have been prosecuted. In that view of the matter, the finding entered by the learned Magistrate is totally faulty and unsustainable. For the forgoing reasons, the order of acquittal passed by the learned Magistrate is liable to be set aside. I do so. 12. Though the accused had been served with notice in this proceedings, they have not appeared either in person or through counsel. I have carefully perused the entire materials available on record. I am satisfied that the two accused are guilty of the offence punishable under Section 138 of the Negotiable Instrument Act. Therefore, they are convicted for the said offence. But, since they have not appeared before this Court in response to the notice though they have been served, I am of the view that this case has to be remitted to the court below for awarding proper sentence on the two accused. Ordered accordingly. 6 ## Crl.A.No.207/01 The court below shall pass appropriate sentence on respondents 1 and 2/accused after hearing them. The court below shall dispose of the matter as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The appellant/complainant and accused shall appear before the court below on May 05, 2009. **(A.K.BASHEER, JUDGE)** cl 7 ## Crl.A.No.207/01 ## **A.K.BASHEER, J.** CRL.A.No.207 OF 2001 ## **JUDGMENT** 10[th ] December, 2008