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Abdul Gafoor v. Abdurahiman
Factual and Procedural Background
The revision petitioner was prosecuted under Section 138 of the Negotiable Instruments Act for issuing a cheque dated 5.6.91 for Rs. 20,000/- which was dishonoured upon presentation. Despite a registered notice demanding payment, the petitioner failed to pay the amount. The trial court convicted the petitioner and sentenced him to three months rigorous imprisonment. On appeal, the Sessions Court reduced the sentence to a fine of Rs. 35,000/-, directing Rs. 30,000/- to be paid to the complainant, who is the 1st respondent. The revision petitioner filed the present criminal revision petition challenging the appellate court's judgment.
Legal Issues Presented
- Whether prosecution under Section 138 of the Negotiable Instruments Act is sustainable against an unregistered partnership firm under Section 69(2) of the Indian Partnership Act.
- Whether the person examined as PW 1 was competent to represent the partnership firm and give evidence on its behalf.
- Whether the trial court erred in not sending the disputed cheque for expert handwriting examination despite the revision petitioner's request under Section 313 of the Criminal Procedure Code.
Arguments of the Parties
Revision Petitioner's Arguments
- The prosecution is not sustainable because the 1st respondent is an unregistered partnership firm and Section 69(2) of the Indian Partnership Act bars such prosecution.
- The person examined as PW 1 was not authorized to represent the partnership firm due to changes in the partnership deed, rendering evidence given by PW 1 incompetent.
- No amount was due from the petitioner, and he denied issuing the cheque in discharge of any legally enforceable debt or liability.
- The trial court failed to send the cheque for expert examination despite the petitioner's request during examination under Section 313 CrPC, which violated procedural requirements and prejudiced the petitioner.
Court's Response to Arguments
- The court rejected the contention regarding prosecution sustainability under Section 69(2) of the Indian Partnership Act, holding that non-registration affects only civil rights and not criminal prosecutions.
- The court held that all partners are agents of the partnership firm and competent to represent it and give evidence; thus, PW 1's evidence was valid.
- The court accepted that the trial court should have considered the request to send the cheque for expert examination, as supported by precedent, and that the failure to do so vitiated the judgments below.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| V.S Geetha v. M. Aliyarkunju, 1996 (2) KLJ 98 | Defence request to send disputed cheque to handwriting expert suffices to attract provisions of Section 243 CrPC. | The court relied on this precedent to hold that the trial court erred in not sending the cheque for expert examination despite the revision petitioner's request during Section 313 CrPC examination. |
Court's Reasoning and Analysis
The court analyzed the applicability of Section 69(2) of the Indian Partnership Act and concluded that non-registration of a partnership firm affects only civil rights and does not bar criminal prosecution under the Negotiable Instruments Act. Regarding representation, the court reasoned that all partners are agents of the firm and competent to represent and give evidence, thus validating PW 1's testimony. Crucially, the court found procedural error in the trial court's refusal to send the disputed cheque for expert handwriting examination despite the revision petitioner's explicit request during examination under Section 313 CrPC. The appellate court's rejection of this contention was also found unjustified. The court emphasized the precedent that such a request is sufficient to engage Section 243 CrPC, mandating expert examination. Consequently, the court set aside the judgments below and remitted the case for fresh disposal, directing the trial court to allow evidence from both sides, including expert examination of the cheque.
Holding and Implications
The revision petition is allowed. The judgments of the trial court and appellate court are set aside. The case is remitted to the trial court for fresh disposal in accordance with law, including allowing expert handwriting examination of the disputed cheque and opportunity for both parties to adduce evidence.
The direct effect is that the prior convictions and sentences are vacated, and the matter will be reheard on a proper evidentiary basis. No new precedent beyond this case's facts is established.
K.A Mohammed Shall, J.:— This Criminal R.P is filed by the accused in S.T No. 11464 of 1993 of the Judicial First Class Magistrate's Court-II, Kozhikode. The accused is the revision petitioner. He was prosecuted for the offence punishable under S. 138 of the Negotiable Instruments Act on the basis of the complaint filed by the 1st respondent. The allegation was that for an amount of Rs. 20,000/- due from the revision petitioner to the 1st respondent, he issued a cheque dated 5.6.91 to the 1st respondent When the cheque was presented for encashment it was bounced. The revision petitioner did not pay the amount in spite of a registered notice intimating about the dishonour of the cheque and calling upon him to pay the amount.
2. The trial court found revision petitioner guilty of the offence punishable under S. 138 of the Negotiable Instruments Act, convicted and sentenced to undergo rigorous imprisonment for three months, by judgment dated 28.2.96 In Criminal Appeal No. 65 of 1996 preferred by the revision petitioner, the Sessions Court, Kozhikode by judgment dated 30.4.97 varied the sentence and the revision petitioner was sentenced to pay a fine of Rs. 35,000/- instead of the term of imprisonment The appellate court directed that in the event of realisation of fine amount, Rs. 30,000/- should be paid to the 1st respondent, complainant This revision is preferred against the judgment in the appeal.
3. The counsel for the revision petitioner submitted that the 1st respondent being an unregistered partnership firm, the above prosecution is not sustainable under S. 69(2) of the Indian partnership Act The effect of non-registration of the Partnership Firm under S. 69 of the partnership Act is applicable only to cases involving civil rights and it has no application to criminal cases.
4. Therefore, the contention of revision petitioner that the prosecution in this case is not sustainable under S. 69(2) of the Indian partnership Act is not acceptable.
5. The counsel for the revision petitioner submitted that the above complaint is filed by one Abdurahiman as the person who is authorised to sue on behalf of the firm under the Partnership Deal. Subsequently the Partnership Deed has been altered and another Abdul Rahiman who has been examined as PW 1 in this case has been authorised to conduct the case on behalf of the Partnership Firm. Therefore, PW 1 is incompetent to give evidence in this case and there is no proper representation of the Partnership Firm. But under the Partnership Act all partners are agents of the Partnership Firm and therefore, every partner is competent to represent the firm and to give evidence on behalf of the Firm. Hence this contention of the revision petitioner is also not sustainable.
6. The counsel for the revision petitioner submitted that no amount is due from him to the 1st respondent and that he has not issued Ext. P1 cheque in favour of the 1st respondent in discharge of any legally enforceable debt or liability. In spite of the fact that the revision petitioner denied the issuance of of cheque in favour of the 1st respondent, when he was questioned under S. 313 of the Criminal Procedure Code and stated that the cheque should be sent for examination by an expert, the trial court did not send the cheque for examination by an expert thereby the evidence available to the revision petitioner is shut out by the lower court. When the above contention was raised by the revision petitioner before the appellate court, the appellate court negatived the contention by stating that the accused had not filed any petition before the trial court to send the cheque for examination by an expert and the accused did not enter the witness box to explain the circumstances under which he was given a signed blank cheque leaf to the 1st respondent. The lower appellate court is not at all justified in negativing the contention of the revision petitioner in this regard. It is not necessary for the accused to file a petition before the Court for sending disputed cheque for comparison by an expert It is sufficient if he stated when he is examined under S. 313 of the Criminal Procedure Code that the document should be send to an expert for comparison. In the ruling reported in V.S Geetha v. M. Aliyarkunju, 1996 (2) KLJ 98 a Division Bench of this Court has held that the request by defence to send the cheque to the handwriting expert for opinion as to its genuineness is sufficient to atstract the provisions of S. 243 of the Criminal Procedure Code. Therefore, the trial court should have considered the request of the revision petitioner to send the cheque for examination by an expert, in view of his contention that he has given only a blank signed cheque leaf, and the 1st respondent has filled up the cheque leaf and instituted the above case against him. Therefore, the judgment passed by the trial court and confirmed by the appellate court is vitiated for non-compliance of the provisions of S. 243 of the Criminal Procedure Code.
7. Hence, this revision petition is allowed. The judgments passed by the court below are set aside and the case is remitted to the trial court for fresh disposal in accordance with law after giving opportunity to adduce evidence to both sides, including comparison of the disputed cheque by a handwriting expert as requested by the revision petitioner. The parties will appear before the lower court on 22.4.1999
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