SIMAIYYA HARIRAMANI Vs. BANK OF BARODA

JUDGEMENT

(1.) This petition has been brought challenging the judgment dated 21.11.2019 passed by the learned Sessions Judge, Balodabazar, District- Balodabazar (C.G.) in Criminal Appeal No. 29/2019 dismissing the appeal filed by the applicants and upholding the judgment of the trial Court by which the applicants have been convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act of 1881'). However, the sentence imposed by the trial Court has been modified to imprisonment till rising of the Court, but quantum of compensation has been enhanced to Rs. 1,20,00,000/-.

(2.) It is submitted by learned counsel for the applicants, that the finding of conviction of the trial Court as well as the appellate Court against the applicants, is totally erroneous and against the facts and provisions of law. Firstly, the statutory demand notice mandated under Section 138 Proviso (b) of the Act of 1881 was never ever served upon the partnership firm. Secondly, the respondent has arrayed the applicants in their individual capacity despite having knowledge that both the applicants are Partners in M/s Global Packaging, which is a partnership firm. It was the partnership firm, which had borrowed Rs.6,73,80,000/- from the respondent and the cheque for repayment of loan was issued on behalf of the partnership firm. Section 141 of the Act of 1881 provides, that in case when the offence alleged to have been committed by a company, then every person in-charge and responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty for the commission of offence. It is further submitted, that the PW-1, who is Branch Manager of the bank and witness of the respondent, has admitted in Para-7 of his deposition, that a separate proceeding has been initiated against the applicants under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (henceforth 'the SARFESI Act') for realization of the whole amount due. The present complaint filed against the applicant is separate. This witness has further admitted that the legal notice was not sent in the name of Global Packaging Partnership Firm. These admissions clearly exonerate the applicants from the charge. Even then the Courts below have given adverse finding in the judgments. It is submitted that in case of Raghu Lakshminarayanan Vs. Fine Tubes , 2007 5 SCC 103, it was held by the Supreme Court that a partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person, but Order 30 Rule 1 of the Code of Civil Procedure, 1908 enables the partners of a partnership firm to sue or to be sued in the name of the firm. Similarly, in case of Monaben Ketanbhai Shah & another Vs. State of Gujarat & others , 2004 7 SCC 15, it was held that the requirements of the ingredients of Section 141 of the Act of 1881 are needed to be fulfilled, also reliance has been placed upon the judgment of Vijay Dhanuka & others Vs. Najima Mamtaj & others , 2014 14 SCC 638. Reliance has also been placed in the judgment of Supreme Court in the matter of Aneeta Hada Vs. Godfather Travels & Tours Private Limited , 2012 5 SCC 661 and Anita Malhotra Vs. Apparel Export Promotion Council & another , 2012 1 SCC 520. It is submitted that the applicants are entitled to be acquitted in this case on factual as well as legal grounds, therefore, interference in the impugned order is prayed for.

(3.) Learned counsel for respondent submits that the applicants are the partners of the firm M/s Global Packaging. It is not denied that it is the applicants, who had issued cheque in favor of the respondents in their capacity as partners of the Firm. Service of notice upon the applicants is not disputed. The point raised that the partnership firm should have been arrayed as a party and that a separate notice was required to be issued, is not the requirement under the law. Reliance has been placed on the judgments of Supreme Court in the cases of C.C. Alabi Hazi Vs. Palapetty Muhammed and another , 2007 6 SCC 555. Pujnab and Sind Bank Vs. Vinkar Sahakari Bank Ltd. and others , 2001 7 SCC 721. It is further submitted that the proceedings under SARFAESI Act is an additional one and that cannot be adjusted with the present proceeding, as it is a criminal proceeding. Recovery from the applicants is yet to be made by the respondents side. It is submitted that in case of partnership firm, the provisions of the Partnership Act, 1932 are applicable, therefore, no case is made out in favour of the applicants and the revision petition is liable to be dismissed.