Karnataka High Court
M/S Vigneshwara E-Biz Pvt Ltd vs M/S Fair Deal Computers & Peripherals on 23 January, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL REVISION PETITION No.1178 OF 2010
BETWEEN:
1. M/s. Vigneshwara E-biz Pvt Ltd.
No.346, Manandi Court
3rd Floor, 27th Cross
Jayanagar 3rd Block
Bangalore - 560 011
2. Sri. K.M.Poddar
Managing Director
3. Sri.S.M.Poddar
Chairman
4. Sri. Deepak Khanolkar
M/s. Vigneshwara E-biz Pvt. Ltd
450/451, Kewal Industrial Estate
S.B.Marg, Lower Parel
Mumbai - 400 013
... Petitioners
(By Sri Govindaraj, Adv., for
M/s. P. Nehru & Associates, Advs.,)
AND:
M/s. Fair Deal Computers & peripherals
Vishal Kumar Jain - Proprietor
Shop No.1, Murugan Plaza
No.5, P.R.Lane, 3rd Cross
2
S.P.Road, Bangalore - 560 002
... Respondent
(By Sri G.K.V. Murthy, Adv., )
This Criminal Revision Petition is filed under Section
397 read with Section 401 of Cr.P.C. praying to set aside
the entire impugned order dated 05.0.2010 passed by the
XIII ACMM, bAngalore in C.C.No.30208/2005 punishing
the petitioners fort lhe offence punishable under Section
138 of N.I. Act and the order dated 26.07.2010 passed by
the P.O. FTC (Sessions) - XI. Bangalore in Crl.A.87/2010
upholding the same and acquit the petitioners.
This Criminal Revision Petition coming on for
Hearing this day, the Court made the following:
ORDER
This is the revision petition filed by the petitioners - accused challenging the legality and correctness of the judgment and order of conviction dated 05.01.2010 passed by the JMFC Court, Bangalore in C.C.No.30208/2005. So also challenging the legality and correctness of the judgment and order dated 26.07.2010 passed by the Presiding Officer of the Fast Track Court (Sessions) - XI, Bangalore in Crl. A. No.87/2010.
2. By the impugned judgment and order of conviction the trial court convicted the accused No. 1 to 4 3 for the offences under Section 138 of the N.I. Act and sentenced them to pay a fine of Rs.5,40,000/-. Being aggrieved by the same, the revision petitioners herein preferred the appeal before the First Appellate Court. The First Appellate Court after appreciating the materials placed before it, dismissed the appeal confirming the judgment and order of conviction passed by the trial court. Hence the revision petitioners are before this court in this revision petition.
3. Brief facts leading to filing of the complaint before the trial court, the respondent - complainant is a dealer in computer parts and peripherals. Accused No.1 is a Private Limited Company having its authorized signatory and accused No. 2 to 5 are the directors. Accused No.1 - company and they are in-charge and responsible for the day-to-day affairs of the company and the accused No.2 is also involved with the daily transaction including the Bangalore branch.. Accused No.12 with the consent of accused No. 2 to 5 purchased 4 various computer and various peripherals totally the transaction amounting to Rs.7,67,200/-. The further contention of the respondent - complainant that towards part payment of the said due amount, the accused No.1 with knowledge and with the consent of accused Nos. 2 to 5 had issued four cheques, bearing Nos. 227880 dated 24.02.2005 for Rs.1,82,500/- cheque No.251303 dated 09.03.2005 for Rs.2,37,500/- cheque No. 251304 dated 11.03.2005 for Rs.30,750/- and vide cheque No.251305 dated 16.03.2005 for Rs.83,750/-. All the cheques were drawn on ICICI Bank Ltd., Jayanagar Branch, Bengaluru. Complainant believed the promise and assurance of accused No.5 and presented the cheques for encashment. But to the utter shock and surprise, that all the four crossed cheques were dishonored with an endorsement "refer to drawer" dated 12.08.2005, 13.08.2005, 19.08.2005 and 18.08.2005. This was intimated to the revision petitioners - accused by issuing legal notice dated 25.08.2005 by RPAD as well as UCP wherein the notice by RPAD was duly served on accused No.1 dated 26.08.2005 5 and accused No. 2 to 5 and accused Nos. 2 to 5 which was served on 31.08.2005. To the said notice, the accused had issued untenable reply dated 08.09.2005 and has not paid the due amount demanded by the complainant within the time stipulated period of time to the complainant, for which the complainant is before the trial court alleging that revision petitioners- accused committed the offence under Section 138 of the Negotiable Instruments Act.
4. Heard the arguments of the learned counsel appearing for the revision petitioners - accused and also the learned counsel appearing for the respondent - complainant.
5. Learned Counsel for the revision petitioner during the course of arguments made the submission that the revision petitioners are totally unconnected with the transaction said to have been taken place between the respondent complainant and also Sri Eric Stephen. It is 6 in his individual capacity, Eric Stephen might have entered into such a transaction. The revision petitioners are not looking after the day today affairs of accused No.1-company. It is also his submission that the local branch at Bengaluru was entrusted to Eric Stephen and the revision petitioners are staying at Bombay Central Office. Hence, the transaction in between the complainant and Eric Stephen is without the knowledge of the revision petitioners herein. The learned Counsel further submitted that even the legal notice issued was not at all served on the revision petitioners. In spite of this, the trial Court as well as the first appellate Court have wrongly come to the conclusion that the transaction between the complainant and Eric Stephen are the transaction of accused No.1 company and the directors i.e., the revision petitioners herein are also bound by the said transaction. The learned Counsel further submitted that looking to the materials placed on record, they would show that the complaint has been lodged against Eric Stephen in Jayanagar police station in crime 7 No.102/2005 and the said matter is still pending. Hence on these grounds, the learned Counsel submitted that the judgment and orders of the trial Court as well as the first appellate Court are not at all in accordance with law. Both the courts have committed error in passing the impugned judgment and orders. The complainant has utterly failed to prove that the revision petitioners have committed the offence under Seton 138 of the Negotiable Instruments Act and submitted to allow the revision petition and to dismiss the complaint as against the revision petitioners.
6. Learned Counsel for the respondent complainant during the course of the arguments made submission that so far as the factual aspects are concerned, there are concurrent findings of the Courts below. Looking to the evidence placed on record before the trial Court, it has come on record that Eric Stephen was the authorized person through the resolution of the company to deal with the transaction of the accused No.1 company with the complainant. He has also submitted 8 that the transactions of computers and peripherals took place since 2002 and till 2005, there was no sort of difficulty and there afterwards, when the cheque were issued with keeping the balance in the bank account of the accused No.1 company, the cheques came to be dishonoured and dispute started between the complainant and accused No.1 and its directors. The materials placed on record clearly go to show that the transaction between Eric Stephen and the complainant are within the knowledge of the directors of the company. In this regard, the learned Counsel drew the attention of this Court to cross examination of D.W.1 to show that the account opening form bears the signature of all the directors. Thus, it is clear that they had the knowledge of transaction of Eric Stephen and the complainant. Even with regard to the authorized transaction, D.W. 1 has clearly admitted in his oral evidence. Therefore, the contentions of the other side cannot be accepted. Both the Courts below have appreciated the materials in right perspective and held that the petitioners herein have 9 committed the offence punishable under section 138 of the Act and have rightly convicted by them. No illegality has been committed by the Courts below and the revision petitioners have not made out any grounds to interfere with impugned order. Hence, submitted to dismiss the revision petition.
7. I have perused the grounds urged in the revision petition, the judgment and orders of the Courts below and also the oral submission made by the learned Counsel at the Bar.
8. Looking to the materials placed on record, the complainant while giving his oral evidence has reiterated the factual aspects and the same has been observed by the Courts below. Nothing has been elicited to disbelieve the case of the complainant. Both the Courts have referred to the oral evidence of D.W.1 and it is preferable to the refer to the oral evidence of D.W.1 which will clinch the issue in the matter.
10
9. Krishna Murari Poddar, S/o. Shankarlal Poddar, filed an affidavit of evidence. During the course of cross examination, he has deposed as under:
" It is true that Ex.P.28 now shown to me is the profile of my company. I cannot say whether seal and the signature found in Ex.P.22 to Ex.P.27 is of my company, and the authorized person of my company. Ex.P.21 is the reply sent by me through my advocate. Ex.P.32 is the account opening form of the company and my signature is also found in the said document. The signature found in Ex.P.32 is that of one Mr. Eric Stephen, who is the authorized signatory of my company. Two admitted signatures on Ex.P.32 are now marked as Ex.P.32(a) and 32(b). Even in Ex.P.31, I now see my signature and also that of authorized signatory of my company. Those two admitted signatures are now marked as Ex.P.31(a) and 31 (b). The document enclosed to Ex.P.32 is board resolution passed by my company dated 29.11.2002. It is also correct to state that my signature is also found in the said document. The said admitted signature now marked as Ex.P.32(c). I admit the contents narrated in para 'B' of Ex.P32. It is correct to state that my company is transacting with the complainant company, from 29.11.2002. It is true to suggest that as per the statement of account, my Co., had purchased the goods from the complainant Co. and issued cheques and honoured the same from 29.11.2002 till 22.2.2005. It is correct to state that if any person wants to deal with the 11 business with any Co., they will look into the profiles and who are the Directors of the Co. It is also correct to state that as on 18.3.2005 as per the statement of accounts my co., was having the balance in the account for a sum of Rs.6,559.81/- only. It is true that Ex.P.1 to Ex.P.4 cheques belongs to Vigneshwara E-Biz Pvt. Ltd. The complaint which was lodged by the General Manager of our Co., by name Meenakshi before Jayanagar police is still under investigation. We had enquired with the Jayanagar police in connection to the status of the said case. It is true that as a Managing Director, I was in charge of operation of all the branches of our Co., whenever review meeting takes place. It is not true to suggest that as a Managing Director, I was in charge of operation of all the branches all over India. It is true that I was aware of financial status of all the branches of our Co., whenever review meeting takes place. It is not true to suggest that I have allowed Ex.P.1 to Ex.P.4 cheques to get dishonored in spite of the complainant being transacting with my Co. since 2002."
10. Perusing this portion of the cross examination of D.W.1, he has admitted the entire acts of the complainant. He has admitted that the company was transacting with the complainant since 2002. If it is his contention that the said transaction was without revision petitioners-directors and it was entrusted to Eric Stephen at Bengaluru, there was no reason for D.W.1 to sign the 12 form which was at Bengaluru branch. He came to know of the branch. This itself goes to show that from time to time, he was in a position to know the factual status of the company. In view of this piece of evidence and also admission of Exs.P.1 to 4 cheques that they belong to their company, both the Courts below have rightly come to the conclusion that the complainant has proved to the satisfaction of the Courts. There are concurrent findings of the Courts below regarding the factual aspects. Even with regard to the legal aspects, perusing the judgment and orders of the Courts below, I do not find any illegality in the said orders. Accordingly, the revision petition fails and it is hereby dismissed.
Sd/-
JUDGE Bsv /Cs/-