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2021 (8) TMI 87 - JHARKHAND HIGH COURTDishonor of Cheque - insufficiency of funds - non - impleading of the partnership firm as accused in the complaint case - scope for reappreciation of evidences on record or not - authorization letter to file Complaint Cases - HELD THAT:- The authorization letter has been filed in the records of Complaint Case No. 86/2006, but it failed to consider that the same has not been exhibited and brought on record as the complainant did not produce the P.W-1 on recall in Complaint Case No. 86/2006 in spite of aforesaid opportunity granted by the learned Judicial Commissioner, Ranchi and the accused did not have any opportunity to cross examine P.W-1 on the point of authorization to represent the complainant company. This lacunae could not be filled up by referring to the authorization letter simply filed in the record of Complaint Case No. 86/2006. Accordingly, the appellate court’s judgement also cannot be sustained in the eyes of law as the same suffers from perversity on this point - decided in favour of the accused/petitioner. Non - impleading of the partnership firm as accused in the complaint case - HELD THAT:- It is an admitted case on record that the cheques in both the complaint cases were issued under the signature of the accused, in the capacity of the partner of the partnership firm namely Mehta Transport Company i.e. for and on behalf of the said partnership firm; the Legal Notices in connection with the bouncing of cheques were also issued in the name of the accused being the partner of the said firm; the complaint case was also filed against the accused being the partner of the said firm. It is also an admitted fact on record that the specific case of the complainant in both the cases was that the accused being partner of Mehta Transport Company and on behalf of the partnership firm entered into hire purchase agreement for purchase of vehicle and the loan was to the extent of ₹ 12,00,000/- was extended to the partnership firm. In discharge of the said debt, the accused handed over two cheques in favour of the complainant which had bounced on account of ‘insufficient fund’. The cheques were issued from the account of the said partnership firm and the petitioner had signed the cheques as a partner - It is also not in dispute that the partnership firm has not been made accused in both the complaint cases and cognizance of the offence was taken only under Section 138 of the Negotiable Instruments Act, 1881. In the absence of the partnership firm being arraigned as an accused, both the complaint petitions against the petitioner (partner of the firm) for offence under Section 138 of the Negotiable Instruments Act, 1881 were not maintainable. No bar or impediment, legal or otherwise, has been reflected from the records of the two cases in making the partnership firm as an accused in the complaint cases and accordingly the doctrine of lex non cogit ad impossibilia is not attracted. The petitioner had signed the cheque in both the cases as a partner of the partnership firm, for and on its behalf. It is held that it was imperative on the part of the complainant company to make the partnership firm of the accused as a co-accused in the complaint cases and on account of failure to do so, the petitioner could not be convicted for offence under Section 138 of Negotiable Instruments Act, 1881 as complaint only against the petitioner in both the cases was itself not maintainable - Decided in favor of petitioner. The petitioner is discharged from his liabilities under the bail bonds furnished by him - petition allowed.
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