GEORGE T POTTAMKULAM Vs. SOJ MANNAMPLACKEL

JUDGEMENT

(1.) This petition for special leave to appeal is filed against the judgment inCC. No. 1254 of 2004 on the file of the Judicial First Class Magistrate's Court-II (Mobile), Kottayam.

(2.) The case of the petitioner - complainant was that towards discharge of an amount of Rs.42,00,000/- the first respondent - accused issued Ext. P1 cheque dated 6.10.2003 in favour of the petitioner which when presented to the bank for encashment was dishonoured for want of sufficient funds in the account of the accused. After complying with the statutory provisions regarding notice, etc., and finding that the amount covered by Ext. P1 cheque has not been repaid, the petitioner filed the complaint against the accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"). To prove the case against the accused, the complainant and the Manager of the bank were examined as PWs 1 and 2 respectively and Exts. P1to P12 were produced. On the side of the defence, the accused was examined as DW 1 and Exts. Dl to D5 were produced. On closing the evidence of the complainant, the accused was questioned under Section 313, Cr.P.C. He denied the allegations levelled against him and stated that a loan of Rs. 45,00,000/- was obtained from the South Indian Bank by mortgaging the property of the complainant for the purpose of the partnership concern, Sindhoor Jewellery and that Ext. P1cheque drawn on the account maintained by the partnership concern was issued as security. He further stated that the complainant and himself were the partners of the said concern. After considering the entire evidence, the Trial Court found that the petitioner - complainant failed to prove that Ext. P1cheque was issued by the accused and that even if any liability was attached to Ext. P1,the complainant also was responsible for the same and hence, acquitted the accused.

(3.) Learned Counsel appearing for the petitioner submits that as per Section 141 of the Act, the Managing Partner or the person who is in charge of the business is responsible for the issuance of the cheque maintained by the firm and that being so, the first respondent is responsible for Ext. P1 cheque. Counsel further submits that the reply given by the first respondent would show that he was managing the affairs of the partnership firm and hence he alone is liable for the issuance of Ext. P1 cheque.