Bindu David George Vs. Malanadu Development Society and anr.

Bindu David George vs Malanadu Development Society and anr.

Disposition Criminal revision petition dismissed Court Kerala Decided Dec 05, 2002

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https://sooperkanoon.com/case/731262

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Citation: sooperkanoon.com/731262
Court: Kerala High Court
Judge: R. Rajendra Babu, J.
Decided On: Dec 05, 2002
Case Number: Crl. R.P. No. 1386 of 2002
Subject: Criminal;Banking
Disposition: Criminal revision petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Order 9, Rule 4: [V.K. Bali, CJ, Kurian Koseph & K. Balakrishnan Nair, JJ] Restoration of Petition for enhancement of maintenance dismissed for default Held, Application under Order 9, Rule 4 C.P.C., is not maintainable. Reason being while exercising powers under ...

Key legal issue: Criminal;Banking
Outcome / disposition: Criminal revision petition dismissed
Acts & sections: Negotiable Instruments Act, 1881 - Sections 138, 141 and 141(1)

Parties & Advocates

Appellant / Petitioner

Bindu David George

Advocate S. Muhammed Haneeff, Adv.

Respondent

Malanadu Development Society and anr.

Advocate Sri Sujith Mathew Jose, Public Prosecutor for Respondent No. 2

Legal References

Acts: Negotiable Instruments Act, 1881 - Sections 138, 141 and 141(1)
Reported In: II(2003)BC561; [2003]114CompCas322(Ker)

Excerpt

.....4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. - --(1) if the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. in view of section 141 the partners who are responsible to the firm for the conduct of the business of the firm as well as the firm are to be deemed to be guilty of the offence under section 138 of the negotiable instruments act if the cheque issued by the firm is dishonoured due to any of the grounds mentioned in section 138 of the act. in view of section 141 of the act wherein it was specifically mentioned that every person who was responsible..........as well as the firm are to be deemed to be guilty of the offence under section 138 of the negotiable instruments act if the cheque issued by the firm is dishonoured due to any of the grounds mentioned in section 138 of the act. the proviso to sub-section (1) of section 141 would make it clear that the burden would be on the partner to prove that the offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of the offence. in fact that stage would come only if he was made an accused in the case. thus all the partners of the firm who are responsible for the conduct of the business of the company or firm are to be arrayed as accused and all of them are liable to be proceeded for the offence under section 138 of the negotiable instruments act. whether any of the accused is liable to be proceeded against for the alleged offence has to be decided on the basis of the allegations made in the complaint and also on the basis of the sworn statement of the complainant. there was specific allegation in the complaint that the business of the firm was carried on at the relevant time by all the accused who were partners of the firm. in view of the specific allegation that all the accused were responsible for the conduct of the business of the firm, they are liable to be proceeded against for the offence under section 138 of the act as all of them shall be deemed to have committed the offence in view of section 141 of the act. if the petitioner or any of the partners of the firm who were arrayed as accused were not responsible for the conduct of the business of the firm or they were entitled to the proviso to section 141(1) of the act, it was for them to establish the same during trial. in view of section 141 of the act wherein it was specifically mentioned that every person who was responsible for the conductof the business of the company (firm) shall be deemed to be guilty of the offence, the contention of the petitioner that.....

Full Judgment

R. Rajendra babu, J.

1. The first respondent herein, Malanadu Development Society, filed C. C. No. 101 of 2001, before the J. F. C. M. Court-I, Kanjirap-pally, against the first accused Kamadenu Milk and Milk Products, Kuttikattu-kulangara, partnership firm and its three partners alleging commission of an offence under Section 138 of the Negotiable Instruments Act, 1881, as the cheques issued by the second accused, the managing partner of the firm, had been dishonoured due to insufficiency of funds in the account of the firm. The third accused, who was one of the partners of the firm, filed C. M. P. No. 3873 of 2002 stating that she was only a sleeping partner of the firm and she had nothing to do with the issuance of the cheque and the conduct of the business of the firm and as such she should be discharged of the, alleged offence. The court below, after considering the allegations in the complaint, rejected the above prayer. Aggrieved by the above order, the third accused has come up in revision.

2. Heard learned counsel for the revision petitioner, the first respondent and also the learned public prosecutor.

3. The main argument advanced by learned counsel for the petitioner was that the petitioner was only a sleeping partner of the firm and was not responsible for the issue of the cheque and a complaint under Section 138 of the Negotiable Instruments Act would be maintainable only against the firm and also the managing partner who issued the cheque. It was further submitted that the third accused who was not responsible for the issue of the cheque was not liable to be proceeded against under Section 138 of the Negotiable Instruments Act and as such the proceedings initiated against the petitioner will have to be stopped or dropped. Learned counsel for the first respondent-complainant submitted that all the partners of the firm who are responsible for the conduct of the business of the firm are liable to be proceeded against in view of Section 141 of the Negotiable Instruments Act. It was further submitted that by Section 141 of the Act all the partners of a firm who are responsible for the conduct of the business of the firm shall be deemed to have committed the offence and as such all of them can be proceeded for the offence under Section 138 of the Act. Section 141 of the Act reads :

'Offences by companies.--(1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this Sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in Sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.'

4. The Explanation to the above Section 141 says :

'(a) 'company' means any body corporate and includes a firm or other association of individuals ; and

(b) 'director', in relation to a firm, means a partner in the firm.'

5. Thus the definition of a company would take in 'firm' also in view of the above Explanation. In view of Section 141 the partners who are responsible to the firm for the conduct of the business of the firm as well as the firm are to be deemed to be guilty of the offence under Section 138 of the Negotiable Instruments Act if the cheque issued by the firm is dishonoured due to any of the grounds mentioned in Section 138 of the Act. The proviso to Sub-section (1) of Section 141 would make it clear that the burden would be on the partner to prove that the offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of the offence. In fact that stage would come only if he was made an accused in the case. Thus all the partners of the firm who are responsible for the conduct of the business of the company or firm are to be arrayed as accused and all of them are liable to be proceeded for the offence under Section 138 of the Negotiable Instruments Act. Whether any of the accused is liable to be proceeded against for the alleged offence has to be decided on the basis of the allegations made in the complaint and also on the basis of the sworn statement of the complainant. There was specific allegation in the complaint that the business of the firm was carried on at the relevant time by all the accused who were partners of the firm. In view of the specific allegation that all the accused were responsible for the conduct of the business of the firm, they are liable to be proceeded against for the offence under Section 138 of the Act as all of them shall be deemed to have committed the offence in view of Section 141 of the Act. If the petitioner or any of the partners of the firm who were arrayed as accused were not responsible for the conduct of the business of the firm or they were entitled to the proviso to Section 141(1) of the Act, it was for them to establish the same during trial. In view of Section 141 of the Act wherein it was specifically mentioned that every person who was responsible for the conductof the business of the company (firm) shall be deemed to be guilty of the offence, the contention of the petitioner that the company as well as the person who issued the cheque for the company alone can be proceeded against under Section 138 cannot be accepted. The above contention is against the specific provision in Section 141. Hence the above argument has only to be rejected. The court below had properly considered the allegations in the complaint and held that accused Nos. 2 to 4 who were responsible for the conduct of the business of the firm were liable to be proceeded against for the offence under Section 138 and I find no reasons to interfere with the above order. Hence this criminal revision petition has only to be dismissed. In the result this criminal revision petition is dismissed.

Same Court & Year Kerala · 2002 Same Parties Bindu David George vs Malanadu Development Society and anr. Same Subject Criminal;Banking Same Judge R. Rajendra Babu, J. Acts & Sections Negotiable Instruments Act, 1881 - Sections 138, 141 and 141(1)

Criminal;Banking