TaxTMI 
TaxTMI 
2018 (12) TMI 1903
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.... lending business under license. The accused used to oftenly take loan from it. In one such transaction, the accused borrowed loan of Rs. 7,39,000/- from the complainant on 07.04.2007 for his business necessities agreeing to repay the said amount on 07.07.2007. The accused also gave a cheque bearing No. 619299 drawn of Canara Bank, Challakere Branch, for a sum of Rs. 7,39,000/- from the complainant on 07.07.2007 towards the discharge of his loan liability. When the said cheque was presented by the complainant for realisation, the same came to be returned from the bank with an endorsement "since account stands closed". The complainant caused a legal notice to the accused on 16.08.2007. Despite receipt of the same, the accused except sending an untenable reply did not meet the demand made in the notice, as such, the complainant was constrained to file a complaint against the accused for the offence punishable under Section 138 of the N.I. Act. 3. To prove his case, the complainant got himself examined as PW-1, three witnesses were examined from the complainant's side as PWs. 2 to 4 and got marked the documents from Exs. P-1 to Exs. P-16. The accused got himself examined as DW-....
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.... also stated that at the time of institution of the complaint, the other partners i.e., his father has not given him any letter of authority. It is relying upon the said statement made by PW. 1, it was argued by learned counsel for the respondent/accused that in the absence of any letter of authority, the complaint is not maintainable. It is not in dispute that the complainant-Firm is a registered partnership firm. It is also not the case of the accused that the partnership deed between the partners prohibits any one of the partner to institute a complaint for the offence punishable under Section 138 of the N.I. Act against a third person. According to Section 12 of the Indian Partnership Act, 1932, "subject to contract between the partners, every partner has a right to take part in the conduct of the business. According to Section 2(a) of the same Act, an "act of a firm" means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. 9. In the instant case, it is the contention of the complainant as well the evidence of PWs. 1 and 2 that the business transaction in question is the business ....
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....m being a financial Firm, would not keep the money idle in the bank account, but keeps it in rotation to earn more profit, also cannot be ignored. 12. More importantly, the contention that the complainant had no capacity to lend has not at all been taken by the accused either in his evidence as DW. 1 or in the cross-examination of PW. 1. Further, the said point was canvassed only in the argument. Still, in the absence of any evidence or material to show that the bank account at Ex. D-6 was the only bank account which the complainant-Firm had, and in the light of cash book and loan ledger book at Exs. P-13 and 14, it is evident that in the year 2007, with respect to which Ex. D-6 pertains to, the complainant-Firm had lent money to other borrowers also and the same has been entered in their cash book at Ex. P-13, loan ledger book at Ex. P-14 and ledger book at Ex. P-15. Therefore, the contention of the accused that the complainant had no capacity to lend is also not acceptable. 13. According to the complainant, the cheque in question was issued to it by the accused towards the repayment of loan on 07.07.2007. The defence of the accused is that the said cheque was issued for sec....
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....ger. The said presumption could not be rebutted by the accused. 17. Consequently, the cheque in question has been dishonoured with the shara "since account stands closed" would not entitle the accused to claim that guilt against him for the offence punishable under Section 138 of the N.I. Act, has not been proved. Since the trial Court without appreciating the materials placed before it in its proper perspective, has erroneously held that the complainant has failed to prove his capacity to lend and which finding has led the trial Court in pronouncing the judgment of acquittal, the same deserves to be set aside and has to be held that the complainant has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 138 of the N.I. Act. Accordingly, I proceed to pass the following order: ORDER The Appeal stands allowed. The judgment of acquittal dated 14.05.2010, passed by the learned Civil Judge and JMFC, Challakere in C.C. No. 765/2007 is set aside. The respondent/accused by name-Sri. S.T. Murthy S/o. Thippeswamy, residing at New Challakere Center, Mutton Market, Challakere Town, Chitradurga District, is convicted for the offen....