Bangalore District Court
Y S V Datha Alais Yagati Suryanarayana ... vs M/S Polybond Organics Pvt Ltd on 25 July, 2024
KABC010033912024
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-82)
:Present:
Sri Santhosh Gajanan Bhat, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to former and elected MPs/ MLAs in the State of Karnataka)
Dated this the 25th day of July, 2024
Crl.A. No.224 / 2024
APPELLANT: Sri Y.S.V.Datta @ Yagati
Suryanarayana Venkatesha Datta
S/o Y.V.Suryanarayana
Aged about 70 years
R/at: Yagati village and Post
Kadur Taluk
Chikkamagaluru District-577140
Presently R/at: No.139/4
56th Cross, 6th Main Road
4th Block, Rajajinagar
Bengaluru-560 010
(Sri M.B.Ramachandra, Advocate for
Appellant)
V/s
2 Crl.A.No.224/2024
RESPONDENT : M/s.Polybond Organics Pvt Ltd
A company incorporated and
registered under the provisions of
Companies Act, 1956
Having its office at No.4 a& 5
4th Floor, Narang Chambers
99/3, N.R.Road
Bengaluru-560 002
rep: by Managing Director
Sri Dinesh Baliga
(Sri Ganesh Bhat Y.H., Advocate for
Respondent)
JUDGMENT
This criminal appeal is filed under Section 374(3) of Cr P.C., being aggrieved by the Judgment and order of conviction passed by the learned XLII ACMM Court, Bangalore in CC No.3593/2023, (Old CC No.27317/2018) dated 08.01.2024.
2. The parties are addressed to their original rankings as that of the trial court for the sake of convenience.
3. The appellant herein was the accused and the respondent herein was the complainant before the trial court wherein 3 Crl.A.No.224/2024 the respondent had filed a complaint under Section 200 of Cr.P.C., for the alleged offences punishable under Section 138 of Negotiable Instrument Act. It has been specifically contended by the complainant that he was the Company interested to install and commission ground mounted solar farm of 20 MW capacity at the outskirts of Kadur on Built-Operate-Transfer (BOT) basis during the month of February 2017 for which the accused had undertaken to provide necessary consultation, advisory services subject to advance payment of Rs.12 lakhs. Believing the version of the accused the aforesaid advance amount was paid and subsequently the project was not materialised since the accused had not provided any advisory services. Accordingly the complainant company had requested for returning their amount and towards the same the accused had issued cheque bearing No.484529 dt.2.3.2018 drawn on Corporation Bank, Yagati Branch, Kadur and had assured of its honor. However, to the shock and surprise of the complainant the same came to be dishonoured on its presentation for the reason 'funds insufficient' on 9.5.2018. As such, the component left with no other alternative had 4 Crl.A.No.224/2024 got issued legal notice as contemplated under the Act calling upon the accused person to repay the cheque amount. Though the notice was duly served upon the accused person, he had not come forward to repay the same and after completing the statutory bound obligations, the complainant had presented the complaint under Section 138 of NI Act before the learned Trial Court. The Court on the presentation of the complaint had taken cognizance of the same and had got it registered as PCR and had proceeded to record the sworn statement of the complainant. On perusing the materials available on the record, the Court had come to a conclusion that a prima facie case was made out for summoning the accused person and as such the case came to be registered as a criminal case and accused was subpoena. The accused, in pursuance of the summons issued to him, had appeared before the trial court and had claimed to be tried. Accordingly, necessary plea of the accused person came to be recorded.
4. The sworn statement of the complainant was considered as the examination in chief and the trial court had proceeded to mark 5 Crl.A.No.224/2024 the documents which were furnished by the complainant as ExP.1 to EX.P.5 which included of the original cheque, memo issued by the banker, demand notice, postal receipt and postal acknowledgment. On completion of the evidence of complainant, the statement of the accused came to be recorded as contemplated under section 313 of Cr.P.C. The accused had denied all the incriminating materials which were available against him. Though sufficient opportunity was given to the accused, he had not cross-examined the witness nor led any defence evidence or argued his case on merits and the trial court had posted the case for passing of the judgment. On perusing the entire materials available on record, the trial Court had arrived at a conclusion that the complainant had proved the ingredients of Section 138 of NI Act and also had proved the issuance cheque by the accused person towards legally enforceable debt. As such, the trial Court had proceeded to pass the judgment and order of conviction, convicting the accused for committing an offence under Section 138 of NI Act and he was sentenced to pay a fine of ₹15,10,000/- and in default to undergo a simple imprisonment for a 6 Crl.A.No.224/2024 period of 6 months. Out of the said amount, Rs.15,00,000/- was ordered to be paid to the complainant by way of compensation as contemplated under Section 357 of Cr.P.C.
5. Being aggrieved by the same, the Accused before the trial court has preferred this instant appeal on various grounds alleging that the impugned judgment and order of conviction passed by the trial court is not correct. It has been submitted that the learned Magistrate had failed to appreciate that the respondent evidence which is in the nature of conjecture and surmises are not supported with any reliable documents. It has also been contended that the respondent being a company had not produced any authorization to represent or file any case before the trial and in the absence of any materials, it would not be proper for the trial court to accept the contentions urged by the Complainant. It has also been contended that a serious doubt would arise that whether respondent is having a company and the allegations made in the complaint are too bald and no reasons has been assigned for lending such a huge amount to the Accused who was an Ex-MLA and there was no necessity for him to 7 Crl.A.No.224/2024 borrow the amount. The appellant has also contended that a fair opportunity in conducting the trial was not followed since the defence evidence in rebutting the statutory provision was not made available to him. It's also been submitted that the parties had mutually discussed and decided during the trial to negotiate and settle the dispute and as such the appellant had agreed to make a part payment and in fact he had paid sum of ₹2,80,000 during the course of trial before the Trial Court. By pointing out the same, it has been submitted that the Trial Court should have afforded proper opportunity to the appellant here in to produce necessary documents in order to justify his contention.
6. The appellant has filed another application under Sec.391 of Cr.P.C., requesting the court to permit him to cross- examine the witness or in alternative to remand the case to trial court for the purpose of cross-examination. In the said application, it has been stated that the appellant / accused was unable to give sufficient instructions to his counsel to cross-examine the complainant on account of his ill-health. The trial court without affording sufficient 8 Crl.A.No.224/2024 opportunity had proceeded to pass the impugned judgment on 6.1.2024. It is submitted that if an opportunity is granted the same would not cause any hardship or inconvenience to the respondent herein and accordingly, he has sought for allowing the application.
7. The learned Council appearing for the appellant has vehemently argued that the impugned order passed by the trial Court itself is erroneous and one of the grounds which has been urged by the appellant is that the trial Court should have proceeded to record the evidence of the complainant in the presence of accused person. Whereas the trial court had considered the initial sworn statement itself as the chief examination which was against the settled principles of law. By relying upon the said aspects, the appellant has sought for intervention of this Court.
8. On issuance of the notice to the respondent has appeared through his counsel and he has stoutly defended the impugned judgment and order of conviction passed by the trial Court. The learned Counsel for the respondent has also taken the 9 Crl.A.No.224/2024 court to various aspects of the case and has brought to the notice that the trial court had in fact afforded proper opportunity to the accused to prove his case. In spite of providing sufficient opportunity, the accused had not come forward to cross examine the complainant and on several occasions adjournments were granted by the trial court only for the purpose of entering into compromise. However the act of the Appellant/accused would clearly indicate that his intention was only to delay and dodge the proceedings. And as such, left with no other alternative, the impugned judgment was passed. It has also been argued by the learned counsel for the respondent that the cheque which was issued was clearly admitted by the accused person and as such the initial burden under Section 139 and Section 118 of NI Act came to be proved by the complainant. When the presumption is not successfully rebutted, the impugned order passed by the trial Court was apt and correct and hence he has sought for dismissal of the instant appeal.
9. The learned counsel for respondent has also filed statement of objections to the application filed under Sec.391 of 10 Crl.A.No.224/2024 Cr.P.C., contending that the application is devoid of merits and the same may be dismissed.
10. Heard and perused the materials on record including the trial court records and the point said to arise for my consideration are as follows.
(1) Whether the trial court had erred in coming to conclusion that there existed a legally enforceable debt attracting the provision of Sec.138 of N.I.Act?
(2) Whether the trial court has erred in coming to the conclusion that the appellant / accused was provided with sufficient opportunity to cross-examine the witnesses?
3) Whether the appellant has made out grounds for allowing the application under Sec.391 of Cr.P.C.,?
4) Whether the impugned judgment and order of conviction passed by the trial court is erroneous and calls for interference of this court?
(5) What order?11 Crl.A.No.224/2024
11. My answer to the above points are as under:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: In the Negative Point No.4: In the Negative Point No.5: As per final order for the following:-
REASONS
12. Point No.1 to 4:- Before adverting to the factual aspects of the case, the main aspect which is required to be appreciated at this juncture is that the Respondent herein was the complainant before the trial court and the complainant company had filed a private complaint under Section 200 of Cr.P.C., wherein they have contended that the accused had offered his advisory and consultation services towards installing and commission of ground mounted solar park of 20 MW capacity at the outskirts of Kadur on BOT basis in the month February 2017 for which he had requested to pay a sum of Rs.12 lakhs and believing his version the aforesaid amount was paid and since he had not offered any advisory services they had 12 Crl.A.No.224/2024 requested for return of the amount and towards the same he had issued cheque bearing No.484529 dt.2.3.2018 drawn on Corporation Bank, Yagati Branch, which on its presentation came to be dishonoured on 7.5.2018 and left with no other alternative, the present complaint came to be filed before the trial court after complying the statutory bound obligations.
13. In the appeal memorandum it has been contended that the trial court had not provided with sufficient opportunities to the accused person to cross examine the complainant. It has also been argued by the learned counsel for the Appellant herein that the impugned order passed by the trial court is contrary to the settled principles of law. It is his contention that the evidence of the complainant was to be recorded in the presence of the accused or his pleader and as such it had violated the settled law and in order to buttress his submission he has relied upon the judgment of the Hon'ble High Court of Karnataka rendered in the case of G.H.Abdul Qadri Vs. Mohammad Iqbal wherein it has been held by the Hon'ble High court that the evidence is required to be recorded only 13 Crl.A.No.224/2024 in the presence of the accused or his pleader and only while recording the evidence under Section 299 of Cr.P.C the mandatory provision of presence of accused can be dispensed with. Even otherwise, if the said ratio is applied to the case, it indicates that the evidence was recorded in the presence of the accused since at the inception, when the accused had appeared before the court he had pleaded not guilty and claimed to be tried and at that point of time, the learned trial court by relying upon the judgment of the Hon'ble Apex court in the case of Indian Bank Association V Union of India, had held that the sworn statement recorded was to be considered as examination-in-chief and had proceeded to adjourn the case for the purpose of cross examination of the accused person. It is pertinent to note that on that day the accused was also present before the trial court and hence it cannot be presumed that the evidence was recorded in the absence of accused person. That apart, sufficient opportunity has been provided by the trial court for the purpose of cross examination. For the sake of convenience, it is pertinent to note that several adjournments came to be granted by the trial court. It is 14 Crl.A.No.224/2024 relevant to note that the case was adjourned for cross-examination of complainant on 11.8.2023 and subsequently, the case was adjourned to 22.8.2023, 21.9.2023, 30.9.2023, 19.10.2023 and on that day the cross-examination was taken as nil and it was posted for further evidence of the complainant, if any and again the case was adjourned to 26.10.2023. The order sheet indicates that on the aforesaid date again the case was adjourned to 2.11.2023, 25.11.2023 and to 6.12.2023. On 6.12.2023 application was filed by the accused under Sec.311 of Cr.P.C., seeking to recall PW1 for the purpose of cross- examination which came to be allowed and the case was posted for cross-examination of PW1 to 12.12.2023. From there it was adjourned to 19.12.2023 and since the accused had again sought for adjournment, the cross-examination was closed and the case was posted for arguments. However, again the case was adjourned from 22.12.2023 to 27.12.2023 and to 6.1.2024. The aforesaid adjournments granted by the trial court would clearly indicate of sufficient opportunity being provided by the trial court. In spite of the same, the contention of the appellant of not being provided with 15 Crl.A.No.224/2024 sufficient opportunity cannot be accepted. When the aforesaid aspects are carefully appreciated, it would clearly indicate that the accused was not diligent at any point of time and in fact he had attempted to evade the process of the court by seeking several adjournments. And after failing to obtain adjournment to his whims and fancies, he has now come up before this Court by way of appeal contending that the order passed by the trial court is highly illegal, erroneous and calls for interference by this Court and also no opportunity was provided to him for cross examining the witness. The entire materials would clearly indicate that the submissions made by the accused is not at all justified and in fact it is a submission which is made to circumvent the proceedings of the court.
14. The court has also taken into account of the application filed under Sec.391 of Cr.P.C. The said provision empowers the appellate court to permit to lead additional evidence, if found necessary and in that event the appellant court may direct the trial court or by itself record the additional evidence. In the entire 16 Crl.A.No.224/2024 application it has been narrated that no proper opportunity was granted. However, as already discussed above, the court had provided sufficient opportunity to the appellant/accused to lead his defence evidence and also to cross-examine the witnesses. In fact the accused had made part payment of the cheque amount which is reflected in the order sheet dated 30.09.2023 for a sum of Rs.1,00,000/- and a sum of Rs.85,000/- on 2.11.2023 and Rs.95,000/- on 25.11.2023. In all a sum of Rs.2,80,000/-. The act of part payment being made by the accused clearly indicates that he was fully aware of the stage of the case and also he had actively participated in the proceedings. The learned counsel for appellant has relied upon the un-reported judgment of Hon'ble High Court of Karnataka in Cr.A.No.598/2013 dt.15.7.2013 (Shankar Guru Vs. State of Karnataka) wherein the Hon'ble High Court after considering the facts had noticed that the trial court had not granted any opportunity to the accused to cross-examine the witness in spite of his submission to engage another counsel. The facts are entirely different with the case on hand. The court has relied upon the 17 Crl.A.No.224/2024 judgment of Hon'ble Apex Court reported in (2024) 4 SCC 453 (Ajitsinh Chehuji Rathod Vs. State of Gujarat) wherein it is held as follows:-
8. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such evidence may lead to failure of justice.
15. When the aforesaid ratio is applied to the case on hand, it indicates that in spite of sufficient opportunity the accused had not preferred to cross-examine the witness. It is also relevant to note that as per the dictum of the Hon'ble Apex Court only when the appellant is prevented from a just cause, he can invoke the provisions of Sec.391 of Cr.P.C. In the instant case, no such reason has been 18 Crl.A.No.224/2024 assigned. Further, the order sheet clearly reflect that the accused had intended to settle the dispute by making part payment. Admittedly, the cheque amount was for Rs.12 lakhs wherein the accused had made a part payment of Rs.2,80,000/- clearly indicates that the accused was provided with the opportunity to cross-examine the complainant. However, he had not utilised the same and now in the appeal he cannot make the aforesaid application to justify his incompetency. Though the accused is a person of perspicacity of being an MLA had ignored to cross-examine the complainant and now filing the application on flimsy grounds cannot be entertained. As such his application under Sec.391 of Cr.P.C., is devoid of merits and liable to be rejected.
16. Apart from that the court has also appreciated the fact of other contentions urged by the Appellant herein contending that the averments made in the complaint don't attract the rigors of Section 138 of NI Act. In order to attract the provisions of Section 138 of NI Act, firstly, the complaint is required to establish the fact that there existed a legally enforceable debt. In the instant case admittedly, it 19 Crl.A.No.224/2024 has been narrated in the complaint that the accused had offered advisory and consultation service towards installing of ground mounted solar farm by the complainant of 20 MW capacity at the outskirts of Kadur on BOT and had obtained Rs.12,00,000/- towards the same. Since it was not materialised, the accused had agreed to repay the same through a cheque bearing No.484529 dated 2.3.2018 for a sum of ₹12,00,000/-. However, the cheque came to be dishonored and it is an admitted fact that a legal notice was also issued calling upon the accused to repay the cheque amount in spite of its due service. He had not come forward to repay the same. By looking into the efforts and facts, it is crystal clear that the complaint has discharged his initial burden under the provision of section 139 and section 118 of the NI Act could be squarely applicable in the facts and circumstances of the case. The accused, though had appeared before the trial court, had not raised any qualms with respect to his liability and he had in fact made payment towards the cheque amount to an extent of Rs.2,80,000/- which would once again fortify the case of the complainant. During the course of appeal it has 20 Crl.A.No.224/2024 been urged that the complaint was a company who was not at all authorized to make any payment. No such materials have been put forth during the entire trial before the trial court. Though it is contended that the demand notice issued by the complainant at the first instance is a bald notice, it is clarified that as per the demand notice at Ex.P.3 which was issued by the complainant company itself, they had specifically narrated the description of the cheque, its date and the amount due under the cheque. Further, they had stated that in the event of non-arrangement of the cheque amount, they would be constrained to initiate necessary legal action. Hence, the notice issued is in accordance with provision of law. Under the circumstances, all the allegations and averments made in the appeal memorandum fails. Accordingly, the impugned judgment and order of conviction passed by the trial court is required to be upheld.
17. I have also bestowed my anxious reading to the compensation which has been imposed by the Learned Trial Court. The trial Judge has taken into account about the payment which has been made by the accused during the pendency of the case and 21 Crl.A.No.224/2024 observing the fact that the transaction had taken place in the year 2017 and the cheque was issued on 2.3.2018, a long period of time had lapsed for which the complainant was required to be compensated. By considering the same, suitable compensation has been awarded to the complainant which seems to be justifiable. Accordingly, no grounds are made out, and as such the points for consideration are all answered in the Negative.
18. Point No.5: In view of my findings on Point No.1 to 4, I proceed to pass the following:
ORDER The Criminal Appeal filed by the appellant/accused under Sec.374(3) of Cr.P.C., is hereby dismissed.
The application filed by the appellant under Sec.391 of Cr.P.C., is hereby rejected.
Consequently, the judgment and order of conviction passed by the XLII Addl.
Chief Metropolitan Magistrate, Bengaluru in CC No.3593/2023 dated 6.1.2024 for the offence punishable under Sec.138 of the 22 Crl.A.No.224/2024 Negotiable Instruments Act is hereby confirmed.
Office is hereby directed to send back the trial court record along with copy of the Judgment to learned Magistrate forthwith.
(Dictated to the Stenographer Grade-I directly on computer in the open court, typed by him, revised and corrected by me and then pronounced in the Open Court on this the 25th day of July, 2024) Digitally signed by SANTHOSHGAJANANABHAT SANTHOSHGAJANANABHAT Date: 2024.07.25 13:37:08 +0530 (Santhosh Gajanan Bhat) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to former and elected MPs/MLAs in the State of Karnataka)