TaxTMI 
TaxTMI 
2018 (12) TMI 1903
X X X X Extracts X X X X
X X X X Extracts X X X X
....arned Civil Judge and JMFC, Challakere, (hereinafter for brevity referred to as `trial Court'), in C.C. No. 765/2007 pronounced the judgment of acquittal on 14.05.2010. It is against the said judgment of acquittal, the complainant has preferred this appeal. 2. The summary of the case of the complainant in the trial Court is that the complainant-Firm is a registered business Corporation doing money 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was given to the accused. Since the accused had issued the cheque in question towards repayment of the said loan amount, the legal presumption formed in favour of the complainant has not been rebutted by the accused. He submitted that, however, the trial Court holding that there was no proof of legally enforceable debt, is an erroneous finding. He also submitted that since both the partners of the Firm have led their evidence as PWs. 1 and 2 and the business is of the Firm, the finding of the trial Court that there was no authorization for the complainant to institute the complaint is also an erroneous finding. 7. Learned counsel for the respondent in his arguments submitted that the complainant has failed to establish that he had capacity....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ohibits 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 of the Firm, as such, it is an act of the Firm. Undisputedly,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....one of its routine business, the complainant got produced certified copy of money lender licence at Ex. P-7, certified copy of Form No. A at Ex. P-10, certified copy of Form No. C at Ex. P-11, Partnership Deed at Ex. P-12, Cash Book at Ex. P-13, loan ledger book at Ex. P-14 and copy of ledger at Ex. P.15. The said loan ledger book at Ex. p-14 shows an entry of loan amount of Rs. 7,39,000/- as outstanding in the name of the accused. Thus, the alleged bank statement of the said Firm produced by the accused as Ex. D-6, which shows that for the year 2007, the balance was too small and few hundred rupees only, would not give an impression that the complainant-Firm had no money to lend. On this point, learned counsel for the complainant submitte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s "././19". The date filled therein is "07/07/19 2007" (the underlined digits i.e., 19 is scratched off in the cheque). With the said imprint of the date portion as "19", learned counsel submits that the cheque was of the decade 1990, as such, the same could not have been issued in the year 2007. In support of his argument, learned counsel for the accused has also relied upon the bank pass books said to be belonging to the accused, which are marked at Exs. D-1 to D-5. 14. The pass book at Exs. D1 to D.5 though mentions about several transactions, but nowhere they give an impression that the cheque in question was being issued in seriatim at any relevant point of time. In a similar case, in T. Vasanth Kumar Vs. Vijayakumari reported in {(20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntly, 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 followin....