Bangalore District Court
Sailesh Kumar vs Madhusudhan S Patel Rep. By Special ... on 1 April, 2025
KABC0A0021652023
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. Sreepada N,
B.Com., L.L.M.,
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 1st day of April 2025
Crl. Appeal. No.25155/2023
Appellant/ 1) Sri. Shailesh Kumar,
Accused:- Aged about 49 years,
S/o N. Sreeramalu,
Ex-Director of
Fortuna Urbanspce Pvt. Ltd.,
A Company incorporated under
Companies Act, 1956,
Residing at No.12, Lalitha Manor,
2nd and 3rd Floor, 14th Cross,
AECS Layout, Sanjay Nagar,
Bangalore-560 042.
(By Sri. Milind Dange - Adv.,)
V/s
2 Crl.Appeal No.25155/2023
Respondent/ 1. Sri. Madhusudan S. Patel,
Complainant: S/o. Sumabhai Patel,
Aged about 72 years,
R/at No.33, South Wood Drive,
W. HFID Connecticut 06110, USA,
Rep. by Special Power of Attorney Holder,
Prakash B. Talreja,
Aged about 73 years,
R/at Flat No.31, 2nd Floor,
"Embassy Centre", 11th Crescent Road,
Bangalore- 01.
2. Fortuna Urban scape Pvt., Ltd.,
Windflower,
Registered Office: No.7, Old No.390,
13th Cross, Sadashivnagar,
Bengaluru-560 080,
Represented by:
Resolution Professional,
Sri. Shivadutt Bannaje,
South Block, 5th Floor,
Manipal Centre,
No.47, Dickenson Road,
Bangalore-560 042.
(By Sri. Chetan Ashok Jadhav - Adv.,
for R.1, R.2 - Ex-parte)
JUDGMENT
This appeal is by the Accused before the trial court, who suffered the judgment of conviction for the offence punishable U/Sec.138 of NI Act passed by 3 Crl.Appeal No.25155/2023 XVII Addl. Judge, Court of Small Causes & ACMM, Bengaluru, in CC.No.55629/2018, dtd. 15.4.2023, challenging the validity of the judgment.
2. For the sake of convenience the parties hereinafter will be referred to with their ranking assigned before the trial court.
3. The facts of the case:-
The Complainant initiated private complaint under Section 200 of Cr.P.C., against the Accused for the offence punishable under Sec.138 of Negotiable Instruments Act on the ground that the Complainant is currently residing in USA as such the case is represented by his power of attorney holder Sri. Prakash B. Talreja and the Accused No.2 is the Director/Proprietor of Accused No.1 company since last 4 to 5 years and both are known to each other and has gained confidence and trust of complainant for his business. Thereafter Accused No.2 has demanded a hand loan of Rs.40,00,000/- in the month of May 2017 and the Complainant agreed to pay the money as requested by Accused No.2 accordingly same was paid on 26.05.2016 in turn 4 Crl.Appeal No.25155/2023 the Accused No.2 has executed demand promissory note (DPN) promising to return the money on demand. It is further submitted that the Accused No.2 further demanded hand loan of Rs.30,00,000/- in the month of July 2017 being obliged by the same, the Complainant paid the said amount of Rs.30,00,000/- on 07.07.2017 for which the Accused No.2 has also executed demand promissory note promising to return and has also attested the demand promissory note in the presence of his wife Smt. Shilpa. It is further submitted that on account of the said hand loan transactions and on demand made by Complainant on 10.12.2017, the Accused No.2 issued two cheques dated:14.12.2017 for Rs.40,00,000/- and Rs.30,00,000/- signed by Accused No.2 on behalf of Accused No.1 Fortuna Urbanscape Pvt. Ltd., drawn on HDFC Bank, Bengaluru in order to discharge their liability. When the Complainant presented the said cheques, both the cheques were dishonoured with an endorsement dated 16.12.2017 as "Account blocked(Situation covered in 21-25)" and thereafter, the Complainant tried to reach on the mobile phone on Accused No.2 but the same was not attended and also there was 5 Crl.Appeal No.25155/2023 no response by Accused No.2. Thereafter, the Complainant got issued the legal notice to the Accused Company and its director on 12.01.2018 calling upon them to pay the amount of said cheques within 15 days on receipt of legal notice through RPAD and the same was served on 13.01.2018 and despite of service of legal notice, the Accused neither replied nor complied and also not made the payment and thereby, the Accused have committed the offense punishable under Sec.138 of Negotiable Instruments Act. Thereafter the Complainant approached the Trial Court for appropriate legal action against the accused.
4. Pursuant to summons the Accused entered appearance through their Counsel before the Trial Court. The substance of the accusation was read over and explained to the Accused in the language known to him. The Accused pleaded not guilty and claimed to be tried. The Power of Attorney holder of the Complainant got examined himself as PW.1 and got marked Ex.P.1 to Ex.P.13 documents and closed his side. The Accused No.2 got examined himself as 6 Crl.Appeal No.25155/2023 DW.1 and got marked Ex.D.1 to Ex.D.3 and closed their side.
5. The trial court after hearing the counsel for Complainant, convicted the Accused for the offence punishable U/Sec.138 of NI Act vide Judgment dtd. 15.4.2023.
6. Feeling aggrieved by the said judgment of conviction, the Accused is in appeal on the following grounds:
1. The order of the Learned Magistrate is not proper and correct and the same is liable to be set aside and acquit the Appellant by this Court.
2. The entire approach of the Learned Magistrate is erroneous as the impugned judgment has been passed by overlooking the legal defense raised by the Accused No.2/Appellant.
3. The whole approach of the Learned Magistrate is not at all justice oriented.
The Learned Magistrate erred in coming to the conclusion that the Appellant is guilty of the offence punishable under Section 138 of the Negotiable 7 Crl.Appeal No.25155/2023 Instruments Act without referred and considering Section 141(2) of the Negotiable Instruments Act.
4. The Learned Magistrate has presumed or incorrectly perceived that the Appellant was responsible for return of the Cheque in question.
5. In the absence of any allegations against the Appellant herein, no vicarious criminal liability can be fixed on the Appellant. Only on the ground that he has signed the Cheque Ex.P.1 as Authorized Signatory is not sufficient to fix the vicarious criminal liability.
6. The Learned Magistrate has failed to appreciate the fact that the Accused Company has been Resolved under Section 31 of the IB Code-2016 vide and the management of said Company has been handed over to the Resolution Applicant, Koncept Shelters. Upon passing of the order under Section 31 of the IB Code 2016, Section 32-A of the said Code comes into operation, which exonerates the criminal liability of the Accused Company and its Officers, which includes the directors of any offence committed by the Company prior 8 Crl.Appeal No.25155/2023 to initiation of Insolvency Resolution Process (CIRP). Hence, the impugned judgment passed by the Learned Magistrate is bad in law and cannot sustain scrutiny of law, and as such the same is liable to be set aside by this Court.
7. The Learned Magistrate was in error to perceive the contrast legal position of Section 14 and 32-A of the IB Code while considering the material facts of the case, and as such the impugned judgment is bad in law on this ground also it is liable to be set aside by this Court.
8. The Learned Magistrate failed to appreciate the fact that at the time of filing the complaint the General Power of Attorney holder of the Complainant was not having legally valid GPA and he produced the legally valid GPA after filing the Complaint. On this ground also the impugned judgment is liable to be set aside by this Court.
9. The impugned judgment passed by the Trial Court is not as per law and the same is perverse and arbitrary, and as 9 Crl.Appeal No.25155/2023 such renders itself sustainable both in law and facts of the case.
10. Under the above grounds the Appellant sought for acquittal by allowing the appeal.
7. Heard both sides.
8. The Trial Court has convicted the Accused No.2 who is the Director and Authorized Signatory of Accused No.1 Company and he himself has preferred this appeal against the Accused No.1 and as well as Complainant. Though the Accused No.2 made the Accused No.1 Company as Respondent No.1 in the present appeal, but there is no allegation made against the Accused No.1 Company, but made entire allegations against the Complainant of C.C.No.55629/2018. Therefore, it appears that the Respondent No.2 is a formal party in the present appeal.
9. Perused the evidence, documents on record and also impugned Judgment of conviction passed by the Trial Court.
10 Crl.Appeal No.25155/202310. On re-appreciation of the evidence, documents on record, the following points would emerge for the consideration of this court.
1. Whether the Appellant proves that the cheques in question were not issued towards any legally recoverable debt?
2. Whether the Judgment of conviction passed by the Trial Court calls for interference by the hands of this court?
3. What Order?
11. My finding on the above points are as under:
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : As per final order for the following :
REASONS
12. POINT NOs.1 and 2:-
Since the above two points are interlinked, in order to avoid repetition of facts the above points have been taken up together for consideration.11 Crl.Appeal No.25155/2023
13. Before re-appreciating the evidence on record, it is necessary to refer some of the latest rulings of the Hon'ble Apex Court reported in 2019 (3) KCCR 2473 (SC) (Basalingappa V/s Mudibasappa), the Hon'ble Apex Court while considering several earlier rulings on the offence U/Sec.138 of NI Act and also on the presumption U/ Sec.118 and 139 of NI Act, at Para 23 was pleased to observe as follows:
23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under
Section 139 is a rebuttable
presumption and the onus is on the
accused to raise the probable defence.
The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can 12 Crl.Appeal No.25155/2023 also rely on the materials submitted by the Complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Sec.139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
14. In another ruling reported in AIR 2010 SC 1898 (Rangappa V/s Mohan), observed as under:-
"Existence of legally recoverable debt or liability- The presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the Complainant. Section 139 of the Act is 13 Crl.Appeal No.25155/2023 an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139, is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/ defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the 14 Crl.Appeal No.25155/2023 prosecution can fail. The accused can rely on the materials submitted by the Complainant and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
15. Keeping in view the broad principles laid down by the Hon'ble Apex Court, let me re-appreciate the evidence and documents on record.
16. The definite case of the Complainant/ Respondent is that the Complainant known to the Accused No.2 who is the Director/Proprietor of Accused No.1 Company since 4-5 years. The Accused No.2 approached the Complainant for hand loan of Rs.40,00,000/- and accordingly the Complainant has paid the same and in turn the Accused No.2 has executed an on demand promissory note. Even the Accused No.2 also further demanded another Rs.30,00,000/- in the month of July 2017 and accordingly the Complainant has paid the same on 7.7.2017. In this regard also the Accused No.2 has executed an on demand promissory note. When the Complainant demanded to repay the same, the Accused No.2 has issued 02 Cheques in favour of the Complainant for Rs.40,00,000/- and 15 Crl.Appeal No.25155/2023 Rs.30,00,000/- respectively. When the Complainant presented the said Cheques for encashment, they came to be dishonoured as 'account blocked'. Thereafter, the Complainant got issued legal notice calling upon the Accused to pay the said amount. The Accused despite of service of notice neither replied nor complied with the said notice. Therefore, the Complainant constrained to file this complaint against the Complainant.
17. The Complainant in order to prove the averments of plaint got examined himself as PW.1 and got marked the documents at Ex.P.1 to Ex.P.13. On the other hand, the Accused No.2 examined himself as DW.1 and got marked the documents at Ex.D.1 to Ex.D.3.
18. It is the specific defense of the Accused/Appellant herein is that the complaint filed by the Complainant through the General Power of Attorney holder is not valid in the eye of law and Ex.P.12 is executed on 18.10.2019 in India. On other hand, Ex.P.13 another Power of Attorney is executed on 16.2.2018 in USA, as such at the time of filing of 16 Crl.Appeal No.25155/2023 the complaint the Power of Attorney holder has no power to file the complaint. Further taken up the contention that prior to filing of the complaint, the Accused Company was sent to Liquidation under Bankers Act as insolvent under Section 14 of I & B Code and as such no Civil or Criminal proceedings can be initiated against the Accused under any Code when the said company is under moratorium and liquidation and also as per Section 31 of I & B Code resolution plan was approved and as such Section 32 of the said Act comes in to appreciation and under the loss of company by replacing the earlier Directors new Directors have taken over the said Company and hence, there is change in the management of the Accused No.1 Company and so also this complaint is a private complaint which is not filed by any other authority or by any police officer against the Accused and hence the liability of the Accused is exonerated for which Accused is not liable.
19. Let me go through the documents produced by the Complainant in this case. Ex.P.1 & Ex.P.2 are the Cheques dtd: 14.12.2017. Ex.P.3 & Ex.P.4 are the Cheques Return Memos dtd: 16.12.2017. Ex.P.5 17 Crl.Appeal No.25155/2023 & Ex.P.6 are On Demand Promissory Notes. Ex.P.7 is the Office Copy of Legal Notice dtd: 11.1.2018. Ex.P.8 & Ex.P.9 are the Postal Acknowledgments. Ex.P.10 & Ex.P.11 are the Bank Statements of the Complainant. Ex.P.12 is the copy of Special Power of Attorney executed by the owner in favour of PW.1. Ex.P.13 is the another copy Special Power of Attorney. The complaint has been presented by the Complainant before the Trial Court on 24.2.2018 within 30 days from the date of cause of action. Therefore, by going through the date of filing of the complaint and as well as date of cause of action i.e., 3.2.2018, this Court opines that this complaint is well within the period of limitation and it is in accordance with the provisions of Negotiable Instruments Act.
20. It is the argument of the Learned Counsel for the Appellant herein is that no vicarious criminal liability can be fixed against the present Appellant, only on the ground that he has signed the Cheques Ex.P.1 & Ex.P.2. The Trial Court has failed to appreciate the fact that Respondent No.2 has been resolved under Section 31 of IB Code-2016 and the management of the said Company has been handed 18 Crl.Appeal No.25155/2023 over to the Resolution Applicant Koncept Shelters. Upon passing of the order under Section 31 of the IB Code-2016, Section 32-A of the said Code comes into operation, which exonerates the criminal liability of the Accused Company and its Officers. Hence, impugned judgment passed by the Trial Court is bad in law. Even the Trial Court has not properly considered the legal position of Section 14 & 32-A of the IB Code. Even the Trial Court has failed to appreciate the fact that at the time of filing the complaint the GPA holder of the Complainant was not having legally valid GPA. Therefore, impugned judgment is liable to be set aside. In support of his contention, he has further relied upon the decisions reported in (2013) AIR (SCW) 6062 Umesh Kumar V/s State of Andhra Pradesh and (2008) Crl.L.J 953 State of Gujarat V/s Shailendra Kumar Kishore Pande & Others.
21. Per contra, the Learned Counsel for the Respondent No.1 during the course of arguments submitted that the Complainant has produced sufficient materials to prove his case. Even the Appellant/Accused did not dispute the loan liability 19 Crl.Appeal No.25155/2023 as he himself admitted in his evidence about the receipt of the amount from the Complainant. Hence, the existence legally recoverable debt is proved by the Complainant. Even though the Accused contended that he has issued Cheque as a security for the advance received for a flat intended to purchase by one Srinvias, but in this regard no materials placed. Further contended that the Complainant is a resident of foreign country and he is suffering from old age related diseases. Hence, he executed SPA in favour of PW.1 and he has knowledge of transaction related to the present case. Further argued that the Appellant is a Managing Director of Respondent No.2 Company and he is the authorized signatory of Respondent No.2 and he was incharge of the affairs of the Company, hence the Accused is liable to pay the Cheque amount. The transaction against the Accused is not barred in view of Section 32-A IB Code and the same is reiterated by the Hon'ble Apex Court in the decision relied upon by the Appellant himself. Even according to Judgment of Hon'ble Apex Court in Pankaj Mehra V/s State of Maharashtra merely by reasons of a winding up of Company, there was no bar or legal 20 Crl.Appeal No.25155/2023 disability in filing the complaint before the Court. The complaint was filed during the pendency of petition for winding up and before passing the order of winding up by the Court. Therefore, this complaint is perfectly maintainable.
22. Further argued that the Trial Court after considering all the materials has properly convicted the Accused for the offence punishable under Section 138 of Negotiable Instruments Act and there is no interference is required by this Court. Accordingly, he prayed to confirm the judgment passed by the Trial Court.
23. In support of his arguments he has relied upon the following citations:
1) Ajay Kumar Radheshyam Goenka V/s Tourism Finance Corporation of India Limited (2023) 10 SCC 545.
2) Pankaj Mehra and Another V/s State of Maharashtra (2000) 2 SCC 756.
21 Crl.Appeal No.25155/202324. I have gone through the citations relied upon by both the counsels. Admittedly, the principles of the decisions relied upon by the Learned Counsel for the Appellant are not at all attracted to the facts of this case. On the other hand, the principles of the decisions relied upon by the Learned Counsel for the Respondent are aptly applicable to the case on hand. In the first decision relied by the Learned Counsel for the Respondent i.e., Ajay Kumar Radheshyam Goenka V/s Tourism Finance Corporation of India Limited the Hon'ble Apex Court clearly held that after passing the resolution plan under Sec.31 IBC by the adjudicating authority and in the light of the provision of Sec.32-A IBC, the criminal proceedings under Sec.138 of Negotiable Instruments Act will stand terminated only in relation to the corporate debtor if the same is taken over by a new management, and Sec.138 of Negotiable Instruments Act proceedings in relation to the signatories who are liable by the provision of Sec.32-A(1) IBC will continue in accordance with law. Admittedly, Ex.D.1 to Ex.D.3 produced by the Accused reveals that new Directors of Accused No.1 have taken over the management on 29.1.2021 itself i.e., after initiation 22 Crl.Appeal No.25155/2023 of Sec.138 of Negotiable Instruments Act proceedings by the Complainant. Further it is also clear that the new Management of Accused No.2 Company has taken over the charge during the pendency of the said proceedings. Even the present case also been filed against the Accused No.1 & 2 before initiation of the proceedings as per Ex.D.1 to Ex.D.3. Therefore, if the principles of the above decisions is applied, definitely both the Accused No.1 & 2 are liable too, as opined by the Trial Court in its judgment. Even though Accused No.2 contended that, he has given information about the pendency of NCLT proceedings to the Complainant, but in this regard the Accused has not placed any materials to show that he has duly informed the Complainant about the said proceeding by issuing letter to the Complainant. Even the Accused has not at all placed any materials to show that he has informed the NCLT about the liability towards the Complainant, such being the fact, the Appellant is liable to pay the Cheques amount to the Complainant.
25. Though the Appellant contended that he is not liable to pay the Cheques amount, but as 23 Crl.Appeal No.25155/2023 discussed above, the Appellant himself has received the amount from the Complainant and also executed on demand promissory notes in favour of the Complainant. Even for discharge of the loan obtained from the Complainant has issued Ex.P.1 and Ex.P.2. That apart, according to Section 32-A of IB Code gives protection to the corporate debtor stating that an offence committed prior to the commencement of the CRIP shall cease., since the Appellant is the Managing Director of Accused No.2 Company and also Authorized Signatory of the Respondent No.2, hence, according to Section 32-A Clause (1) (b) the Appellant is directly involved in commission of offence punishable under Section 138 of Negotiable Instruments Act.
26. Further in the decision relied upon by the Respondent i.e., Pankaj Mehra and Another V/s State of Maharashtra AIR 2000 SC 1953 the Hon'ble Apex Court has held that merely because the reasons of a winding up petition being presented, there was no bar to take legal action against the Company. Therefore, the complaint filed by the Complainant is perfectly maintainable.
24 Crl.Appeal No.25155/202327. It is the another contention of the Appellant is that the complaint filed by the Complainant through GPA holder is not valid in the eye of law, as the original GPA has not been produced at the time of filing of the compliant. No doubt, the Complainant is residing at USA and he has executed the GPA in faovur of PW.1 who in turn filed this complaint along with Ex.P.2 i.e., the copy of Power of Attorney. Further, according to Appellant the Ex.P.12 executed at India and the document of Power of Attorney at Ex.P.13 is executed on 16.2.2018 at USA and as such at the time of filing of the complaint, the Power of Attorney was not holding the valid authority to file the complaint.
28. However, the Learned Counsel for the Respondent contended that the Complainant is residing at USA and suffering from old age ailments for which he has executed Power of Attorney in favour of PW.1 who has complete knowledge about the complaint. Merely because the xerox copy of the GPA produced at the time of filing of the Complainant as per Ex.P.12 and later he has produced Ex.P.13 25 Crl.Appeal No.25155/2023 are not at all the ground to reject the claim of the Complainant.
29. That apart, as opined by the Trial Court in its judgment, PW.1 in his affidavit has clearly mentioned about the fact that the Complainant has given Power of Attorney in his favour. Further Ex.P.12 shows that the Complainant being residing at USA has executed the same. Even the xerox copy of Power of Attorney is marked and based on which only cognizance has been taken by the Trial Court and PW.1 also clearly stated that he has knowledge about the facts of this case and Ex.P.10 dtd. 18.10.2019 is having the evidentiary value in the eye of law, based on which only PW.1 has deposed and conducted the case. Therefore, this Court opines that the Trial Court after considering both Ex.P.12 & Ex.P.13 and as well as from the evidence of PW.1 has properly held that the Complainant has proved the said Power of Attorney as valid and the complaint filed by the PW.1 is maintainable in the eye of law.
26 Crl.Appeal No.25155/202330. Looking from any angle, this Court opines that whatever contention taken by the Appellant are not at all supported by any materials. On the other hand, the present Appellant is the Signatory on the Cheques issued to the Complainant, even he himself has executed on demand promissory note, after receipt of amount from the Complainant, for which he cannot escape from the liability under Section 138 of the Negotiable Instruments Act. Therefore, the Trial Court has properly come to conclusion that the defense of the dissolution of the Accused No.1/Respondent No.2 is only Company not the criminal liability of the Accused/Appellant herein as the offence committed by the Appellant herein covered under Section 141 of Negotiable Instruments Act and the criminal proceedings under Section 138 of the Negotiable Instruments Act will stand terminated only in relation to corporate debtor if the same is taken over by new management before initiation of criminal proceedings. Such being the fact, this Court opines that the Trial Court after considering all the materials and question of law and also by applying the principles of the decisions of the Hon'ble Apex Court has properly held that the 27 Crl.Appeal No.25155/2023 Appellant is liable for punishable under Section 138 of the Negotiable Instruments Act.
31. It is also clear from the records that the Accused has not at all denied about receipt of Rs.70,00,000/- from the Complainant and payment of the amount has been clearly mentioned in Ex.P.10 and Ex.P.11 Account Statements of the Complainant. Even during the evidence also the Accused has taken up contention that he has issued Ex.P.1 & Ex.P.2 Cheques for the security purpose, but in this regard also he has not placed any materials. On the other hand, as opined by the Trial Court, the Complainant has proved that the said amount mentioned in Ex.P.1 & Ex.P.2 are only for discharge of legally recoverable debt. Therefore, the Accused No.2 is the Signatory on behalf of Accused No.1 Company is liable to pay the said amount to the Complainant. Therefore, looking from any angle, this Court is of the opinion that the Appellant has not placed any materials to show that the complaint filed by the Complainant is not maintainable and he is not liable to pay the Cheques amount. On the other hand, this Court opines that the Ex.P.1 issued by the Appellant is for legally 28 Crl.Appeal No.25155/2023 payable debt. Therefore, there is no necessity to interfere with the judgment passed by the Trial Court.
32. In so far as quantum of fine imposed by the trial court is concerned, the Trial Court has imposed total fine of Rs.91,00,000/- as against the Cheques amount of Rs.70,00,000/-, keeping in view the year of transaction, duration of litigation, cost of litigation and interest on the outstanding amount etc. Since the transaction between the parties was of the year 2017 and the above case was disposed of by the Trial Court on 15.4.2023 and keeping in view of the duration of litigation and cost of litigation etc., the Trial Court has rightly awarded fine of Rs.91,00,000/-. Hence, there is no reason to interfere with the quantum of fine imposed by the trial court.
33. Thus, looking from any angle, the Accused failed to establish any probable defence even on the materials produced by the Complainant. Having regard to the facts and circumstances of the case, the Accused failed to substantiate his defence by producing cogent evidence before this court. The 29 Crl.Appeal No.25155/2023 Trial Court by appreciating the evidence and documents in a proper perspective and while referring to the rulings of Hon'ble Apex Court has rightly convicted the Accused for the offence punishable U/Sec.138 of NI Act. In the absence of any perversity or capriciousness while convicting the Accused, there is no reason to interfere with the Judgment of the trial court. Therefore no grounds made out by the Accused to interfere with the Judgment of conviction passed by the trial court. Hence, Point Nos.1 and 2 are answered in the Negative.
34. Point No.3:
In view of the findings on the above points the appeal filed by the Appellant deserves to be dismissed. Accordingly, I proceed to pass the following:-
ORDER The appeal filed by the Appellant U/Sec.374 (3) of Cr.P.C., is hereby dismissed with costs.
The Judgment of conviction passed by the Learned XVII Addl. Judge, Court of Small Causes & ACMM, Bengaluru, 30 Crl.Appeal No.25155/2023 in CC.No.55629/2018, dtd. 15.4.2023, is hereby confirmed.
Send back the records with a copy of this Judgment to the Trial Court.
(Dictated to the Stenographer, typed by her, corrected, signed and then pronounced by me, in the open court on this the 1st day of April 2025.) [Sri. Sreepada N] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73).