SURESH KALLAPPA MAKAVI Vs. MADAN BINDURAO DESAI

JUDGEMENT

(1.) THE Petitioner/accused is convicted for an offence punishable under Section 138 of the Negotiable Instruments Act and is sentenced to undergo S. I for six months and to pay a fine of Rs. 5,000/- in default to suffer S. I. for two months and further he is directed to pay compensation of Rs. 2,12,000/- to the complainant by an order of conviction and sentence dated 22. 5. 2004 passed by the II Additional Civil Judge (Junior. Division), JMFC III Court, Hubli in C. C. No. 755/1993. The said order of conviction and sentence is confirmed by judgment dated 7. 11. 2005 passed by the Presiding Officer Fast Track Court-II, Dharward, sitting at hubli in Crl. A. No. 26/2004.

(2.) THE respondent/complainant had given a hand loan of a sum of rs. 2,12,000/- to the petitioner/accused herein on 1. 12. 1990 for the purpose of augmenting his business. Towards the discharge of part of his liability, the petitioner/accused had issued a cheque in a sum of Rs. 1,00,000/- on 10. 12. 1991. The same on presentation was dishonoured. The respondent/ complainant insisted for the return of the entire amount lent by him and accordingly, the petitioner/accused issued a cheque dated 30. 11. 1992 for a sum of Rs. 2,12,000/- towards the discharge of his liability. The cheque was presented on 3. 12. 1992 for encashment. The same was returned with a bankers endorsement on 5. 12. 1992 as 'funds insufficient'. The respondent/ complainant issued a legal notice on 17. 12. 1992 and sent it by registered post acknowledgment due and also under certificate of posting on 18. 12. 1992 calling upon the petitioner/accused to make good the amount indicated in the notice within 15 days from the date of receipt of the notice. The petitioner/accused failed to make the payment of the same. The respondent/complainant filed a complaint under Section 200 of the Cr. P. C. for an offence punishable under Section 138 of the N. I. Act against four accused persons. He implicated M/s. Dharmashree Industries as A-l, shankar Basavanneppa Jigjinni as A-2, Suresh Kallappa Makavi, the petitioner/herein as A-3 and Smt. Kamala Krishnappa as A-4. During the course of the trial proceedings, the respondent/complainant withdrew his claim as against A-2 on the ground that he was suffering from paralysis. A-4 Smt. Kamala Krishnappa was also got deleted from the proceedings at the instance of the respondent/complainant on the ground that she was not the partner of the firm as on the date of issuance of the cheque.

(3.) THE petitioner/accused contends that the cheque in question was not issued towards the discharge of liability of A-l firm or the personal liability of A-3, the petitioner herein. The respondent/complainant cannot individually prosecute the complaint as against the petitioner/a-3, as petitioner/a-3 is only a sleeping partner and it is only A-2 and A-4 who were active partners responsible for the day-to-day business of M/s. Dharmashree Industries and were responsible for the liability of the said firm. It is further contended that A-2 and A-4 in connivance with the complainant has issued a cheque signed by the petitioner/accused herein. A-2 also had signed the said cheque, even then, the respondent/complainant has failed to prosecute A-2 and has got deleted A-2 on the ground that he was suffering from paralysis. It is to be noted at this stage that the proceedings under Section 138 of the N. I. Act can be initiated as against a person who has signed the cheque and if it is a cheque of a joint account signed by two persons, the complainant can choose and either proceed against both the signatories or proceed against one of the signatories. The complainant cannot be compelled to proceed against both the signatories as such the contention of the petitioner/accused that prosecution as against the petitioner/accused alone is not maintainable, does not hold any water. It is not in dispute that the petitioner/accused has signed the cheque. The very fact that the petitioner/accused having singed the cheque would establish that the petitioner/accused was also an active partner responsible for the day-to-day affairs of the accused company. As such the contention of the petitioner/accused that he was a sleeping partner of the firm is also of no avail to the petitioner/accused. The further contention of the petitioner/accused that the respondent/complainant has not averred in the complaint that the petitioner/accused was in-charge of the management of and was responsible for the day-to-day affairs of accused No. 1 firm, is also of no help to the petitioner/accused because the averments in the complaint reveal that the respondent/complainant has clearly stated that it was A-2 to A-4 who were responsible for the day to day affairs of the company. The petitioner/accused has not disputed his signature on the cheque Ex. P. l. The petitioner/accused also denies the service of legal notice but on comparison of the signature on the postal acknowledgment Ex. P. 6 with the admitted signature of A-3 in the vakalath, it is found that the signatures are one and the same and the First Appellate Court has held that the postal acknowledgment is duly singed by the petitioner/accused. As such it is held that the petitioner/accused is duly served with the legal notice. In addition to the same, the notice has also been forwarded to the address of the accused as shown in the cause title. It is not disputed that the petitioner/accused is not residing in the address shown in the cause title. It is also to be presumed that the petitioner/accused was served with the notice sent under certificate of posting and in view of the same, it was not necessary or incumbent on the part of the Trial Court to forward the documents to the Handwriting Expert to ascertain whether the notice is duly served on the petitioner/accused or not. It is found from the records that the legal notice has been sent to the petitioner/accused on 7. 12. 1992 under registered post and it is also sent on 18. 12. 1992 under certificate of posting. The complaint thereafter has been filed within the stipulated period. As such the contention of the petitioner that the presentation of the complaint is not lawful also does not enure to the benefit. The Counsel for the petitioner/accused also contended that the respondent/complainant has admitted in his evidence that there is only one transaction for a sum of Rs. 1,00,000/ -. The reading of that portion of the evidence would clearly establish that the reference is with regard to the one lakh rupees cheque issued by the petitioner/accused besides a stray admission does not take away the effect of the evidence of the complainant to the effect that the petitioner/accused had borrowed a sum of Rs. 2,12,000/- and towards the discharge of the said liability he has issued cheque Ex. P. l. At every stage of the case, the petitioner/accused has tried to deny every aspect of the matter, the very issuance of the cheque for discharging the liability, the service of notice within the stipulated period, presentation of the complaint within the stipulated period and signature on the acknowledgment of the service of notice, though the material on record clearly discloses that there is due compliance of the provisions as contemplated under Section 138 of the N. I. Act. The revision is against the concurrent findings of the Courts below. The petitioner has failed to establish any legal lacuna in the orders passed by the Courts below. As such, I do not find any good ground to interfere in the order of conviction of the petitioner for an offence punishable under Section 138 of the N. I. Act. However, as regards the sentence, since the same is harsh and excessive the same calls for interference in the present revision petition. Hence, the following: order the revision petition is partly allowed. The order of conviction of the petitioner/accused for the offence punishable under Section 138 of the N. I. Act is confirmed. The sentence for the said offence is set aside and in lieu the petitioner accused is sentenced to pay a fine of Rs. 2,50,000/- in default to suffer S. I. for six months. Out of the fine amount a sum of Rs. 2,25,000/- is ordered to be paid to the respondent/complainant as compensation.