ORDER
K.C. Bhanu, J.
1. The de facto complainant in C.C. No. 42/1998 on the file of Judicial Magistrate of I Class, Uravakonda, filed this appeal, aggrieved by the order, dated 20.1.2000, whereby the accused-1st respondent was acquitted of the charge under Section 138 of the Negotiable Instruments Act.
2. The appellant filed a private complaint alleging that the accused borrowed a sum of Rs. 2,55,001/- for his business needs and agreed to repay the amount with the interest and the terms and conditions stipulated in the promissory note executed by him. In response to the demands made by the appellant, the accused issued a cheque bearing No. 64747 and another cheque bearing No. 64748, both dated 14.3.1998 for Rs. 50,000/- each, both drawn on Vysya Bank. The appellant presented the cheques in its Bank. The Bank returned them unpaid for want of sufficient funds. Thereafter, appellant got issued a notice. The accused refused to receive it. He also did not pay the amount demanded. Hence, appellant filed the private complaint. On behalf of the appellant, three witnesses were examined and seventeen documents were marked. The Trial Court after considering the evidence on record dismissed the complaint by its judgment, dated 20.1.2000, inter alia on the ground that P.W. 1 issued the notice in his individual capacity but not on behalf of the appellant-finance firm, and that he was not properly authorized to represent the company. Questioning the legality and correctness of the said judgment, the de facto complainant filed the present appeal.
3. Learned Counsel for the appellant contended that the accused borrowed the amount from the appellant-firm of which P.W. 1 is the Managing Partner, that there were no personal transactions between the accused and P.W. 1 except the transaction in question, that only to discharge the debt borrowed by him the accused issued the dishonoured cheques in question, that the burden is on the accused to show that the cheques were not issued in the discharge of a legally enforceable debt, that the lower Court having observed that the notice was issued to the accused within time and the complaint was filed within time ought to have convicted the accused, and that as P.W. 1 is no other than the Managing Paratner of the appellant-firm no authorization was necessary to file the complaint. Learned Counsel relied upon some decisions which will be referred to at appropriate place. Heard the learned Counsel appearing for the learned Public Prosecutor. Though notice was served accused is not present and there is no representation on his behalf. I have perused the entire record.
4. Once issuance of cheque is admitted, presumption under Section 139 of the Act that the holder of it has received it in the discharge of a legally enforceable debt has to be drawn unless the contrary is proved.
5. P.W. 1 is the Managing Partner of appellant-Thulija Finance which is a registered partnership firm. Ex. P1 is Form 'C'-registration certificate. Ex. P2 is the deed of partnership. As seen from Ex. P2, the management of the firm shall vest with Mohan Rao and M. Suryanarayana. M. Suryanarayana is P.W. 1. He stated that the accused borrowed a sum of Rs. 2,55,001/-, and executed Ex. P3-promissory notice. To discharge the said debt, on repeated demands the accused issued Exs. P4 and P5 cheques. The cheques were dishonoured. The fact that the accused issued Exs. P4 and P5 has not been specifically disputed or denied in the cross-examination. It has thus been established that the accused issued Exs. P4 and P5. Therefore, the presumption under Section 139 of the Act can be drawn in this case.
6. One of the grounds on which the Trial Court dismissed the complaint is that P.W. 1 issued the notices Exs. P15 and P16 in his individual capacity. A persual of the notices shows as though they were issued by P.W. 1 personally. P.W. 1 too admitted in his evidence that the notices issued by him do not show that they were issued by him on behalf of the appellant-firm as its Managing Partner.
7. Learned Counsel for the appellant relied upon a decision in M.M.T.C. Limited v. Medchl Chemicals & Pharma (P) Ltd., : 2002CriLJ266 , in which it has been held in paragraph 12 as follows:
'It has been held that it is open to the de jure complainant company to seek permission of the Court for sending any other person to represent the company in the Court. Thus, even presuming that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on this ground.'
8. The above decision has no application to the facts of the present case, because in the instant case P.W. 1 is not an employee of the appellant-firm; he is its Managing Partner. He signed the complaint in that capacity. Simply because Exs. P15 and P16 do not show that they were not issued on behalf of the firm, it does not mean that they relate to some transaction between the accused and P. W. 1 individually. The cheques were issued in favour of the appellant-finance firm. The cheques were presented in the Bank on its behalf. In Exs. P15 and P16 issued by P.W. 1, the same cheque numbers were referred to. It is not the case of the accused that there were some transactions between him and P.W. 1 in respect of which the cheques in question were issued. Exs. P15 and P16 cannot be read in isolation but have to be read together with the evidence of P.W. 1. When so read, it makes it clear that the cheques were given in the discharge of loan obtained under Ex. P3 from the appellant-firm. It appears that it is a mistake on the part of the Counsel who sent the legal notice to the accused that he did not mention that the notices were issued on behalf of the firm. On that ground it cannot be said that P.W. 1 is neither a payee nor a holder in due course. The evidence of P.W. 1 coupled with the recitals in Exs. P15 and P16 would clearly go to show that P.W. 1 issued the notices to the accused on behalf of the firm. It is also pertinent to refer to a decision in Rajneesh Aggarwal v. Amit J. Bhalla, I (2001) SLT 288=I (2001) CCR 61 (SC)=(2001) 1 SCC 631, wherein it has been held as under:
'The object of issuing notice indicating the factum of dishonour of the cheques is to give an opportunity to the drawer to make the payment within 15 days, so that it will not be necessary for the payee to initiate any criminal action, even though the Bank dishonoured the cheques. It was the respondent who had signed the cheques as the Director of the drawer company. When the notice was issued to the respondent Director, it was incumbent upon him to see that the payments were made within the stipulated period. Admittedly the respondent had signed the cheques and he was the Director of the drawer company. Bearing in mind the object of issuance of such notice, it has to be held that the notices could not be construed in a narrow technical way without examining the substance of the matter.'
9. The only purpose of notice is to give an opportunity to the drawer to make the payment within the stipulated time. Therefore, just because it was not mentioned in the notices that they were issued on behalf of the firm, it cannot be said that they were not issued on behalf of the firm, as already discussed above, and the prosecution cannot be thrown out on that ground. Justice cannot be lost in technicalities. As already stated supra, it is only a mistake not to mention that the notices were issued on behalf of the firm. Therefore, the first ground on which the Trial Court acquitted the accused has to be rejected.
10. The next ground on which the Trial Court acquitted the accused is that there was no authorization by the firm in favour of P.W. 1 to file the complaint against the accused. P.W. 2 staled that he was the Managing Partner of the firm. He admitted in his cross-examination that he had not filed any special authorization letter from the firm and that the Partnership deed filed by him did not authorize him to file the complaint. On this admission the Trial Court came to the conclusion that there was no authorization by the firm in favour of P.W. 1 which warranted the dismissal of the complaint.
11. Ex. P2 is the partnership deed. It has been staled therein that the management of the firm shall vest with Mohan Rao and Satyanarayana till such period the other partners replace them. Satyanarayana is P.W. 1. This clause in the partnership deed certainly empowers P.W. 1 to file the complaint as he was managing the affairs of the firm by the relevant point of time. When P.W. 1 himself was the Managing Partner, managing the affairs of the firm, there was no necessity for a special authorization in his favour athorizing him to file the complaint. A special authorization would have required to file a complaint by the company had he not been managing the affairs of the firm. Under these circumstances, the observation of the lower Court in this respect has to be set aside and is accordingly set aside.
12. Admittedly the amount covered by the bounced cheques has not been paid within 15 days from the date of refusal to receive the notices. The Trial Court also observed that Exs. P15 and P16 were issued to the accused within 15 days from the date of receipt of intimation from the Bank about the dishonour of the cheques. Therefore, I have no hesitation in holding that the accused committed an offence punishable under Section 138 of the Act. He is accordingly convicted under Section 138 of the Act.
13. As regards the sentence, the complaint was lodged about five years back. Therefore, it is not desirable to send the accused to jail at this stage. Imposition of fine would serve justice having regard to the facts and circumstances of the case.
14. In the result, the appeal is allowed. The order of acquittal is set aside. The accused is convicted under Section 138 of the Act and sentenced to pay fine of Rs. 5,000/- (Rupees five thousand only) within six weeks, and in default of payment of fine to undergo simple imprisonment for one month. The accused is also directed to pay Rs. 1,00,000/- (Rupees one lakh only) to the appellant-complainant by way of compensation within six weeks.