Bangalore District Court
M/S.Aakruti Nirmiti Ltd vs M/S.Grassim Industries Ltd on 10 August, 2015
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-70)
Dated this the 10th day August, 2015
Present;- Sri. K. R. Nagaraja, B.A., L.L.B.
LVI Additional City Civil & Sessions
Judge, Bengaluru City.
C/c LXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY
(CCH-70).
Criminal Appeal No. 342/2015
Appellants : 1.M/s.Aakruti Nirmiti Ltd.,
Represented by Managing Director,
Mr.Vittal Patel.
1.Vittal Patel, Managing Director,
M/s.Aakruti Nirmiti Ltd.,
2.Tarun Choudhary, Project Manager,
Registered Office at No.220,
Chanakya, Opp:T-Ward Office,
Devi Dayal Road, Mulund West,
Mumbai-400 080.
Branch office at 70, 70/1,
1st floor, Mekhri Building,
Lalbagh Road,
Bangalore-560 027.
[Rep. by Sri. D.O.Kotresh
Advocate & Associates]
--V/S--
Respondents : M/s.Grassim Industries Ltd.,
(Unit: Birla Ready Mix)
A Company incorporated under
Companies Act, 1956, having
Its Registered Office at Birlagram,
Nagda District, Ujjain,
Madhya Pradesh,
Regional Office at Industry
House, 5th floor, 45 Race
Course Road, Bangalore-01
2 Crl.Appeal No.342/2015
Unit at Sy.No.102/2A, 2B,
Harlur village, Varthur Hobli,
Koramangala Post, Bangalore.
Represented by Asst.Officer and
Power of Attorney Holder
M.S.Kavisetti, aged 57 years,
S/o.Sri.Shankarappa,
Since merged with and presently
in the name and style of
M/s.Ultratech Cements Ltd.,
(Erstwhile M/s.Samruddhi
Cements Ltd.,)
(Erstwhile M/s.Grassim
Industries Ltd.,)
Unit:Birla Ready Mix)
A Company incorporated
Under Companies Act, 1956,
Having its Registered Officer at
B-Wing, Ahuja Centre, 2nd floor,
Mahakali Caves Road,
Andheri (East), Mumbai - 400 093.
Regional Office at Industry House,
5th floor, 45, Race Course Road,
Bangalore - 560 001.
Unit Sy.No.102/2A, 2B,
Harlur Village, Varthur Hobli,
Koramangala Post, Bangalore.
Rep.by City Head Commercial (F&C),
And letter of authority holder
J.Nagaraj.
[Rep. by Sri. S.J.Sanghavi
Advocate]
3 Crl.Appeal No.342/2015
JUDGMENT
Appellants/accused before court below, who will be hereinafter referred as an `Accused` have challenged the correctness and legality of their conviction for the offence punishable u/sec.138 of Negotiable Instrument Act and their sentence for payment of fine of Rs.24,00,000/- in default they shall undergo simple imprisonment for 6 months for the said offence through impugned judgment and order dated 19.02.2015 passed in C.C. No.9994/2014 on the file of XXV Additional Chief Metropolitan Magistrate, Bengaluru City.
2. Essential material events leads to this appeal are as follows; respondents herein/complainant before court below who will be hereinafter referred as `Complainants` launched criminal prosecution for the offence punishable u/sec.138 of N.I. Act, 1881 against the accused through private complaint maintained under section 200 of Cr.P.C. with support of allegations that Ex.P.1 to 6 cheques issued by accused in favour of complainant towards payments 4 Crl.Appeal No.342/2015 due on the purchase of ready concrete mix on credit basis from complainant were dishonour on account of insufficient funds in the account of accused on 26/02/2009 as per bank endorsements issued as per Ex.P.7 to 12 and Accused despite of statutory notice of dishonour of cheque as per Ex.P.13 dated 07/03/2009 and accused failed to pay cheque amount and thereby accused have committed above offence and amongst other incidental allegations. Hon`ble court below registered case against accused in CC No.9994/2014 after taking cognizance of the complaint of complainant and examination of material placed by complainant including his sworn statement and other documents. Accused appeared through their Advocate and they were on bail. Copies of and supporting materials were supplied to accused. Substance of accusation was read over and explained to accused. All the Accused pleaded not guilty and claimed to be tried. The complainant got examined through power of attorney holder as Pw.1 and got marked 22 documents. After completion of evidence on behalf of complainant, accused Nos.2 and 4 5 Crl.Appeal No.342/2015 respectively representing other Accused company, were examined u/sec. 313 of Cr.P.C. All the Accused denied all incriminating evidence appeared against them. All the Accused have not lead any defence evidence. Hon`ble court below after hearing counsel for the parties and examination of available material through impugned judgment found accused guilty for the offence punishable u/sec. 138 of N.I. Act and sentenced them as noted supra.
3. Accused feeling aggrieved and dissatisfy with the above conviction and sentence has preferred the present appeal. They have contended that, the trial Court has not properly appreciated the evidence of Pw.1 who has no knowledge on the transactions between M/s.Samrudhi Industries Limited and Accused Company. That the trial Court has not properly appreciated the defence of the Accused that, there was no transactions with the complainant and there was no amount due and liable to be paid by the Accused, and the impugned cheques were issued as a security to the complainant company. That the trial Court has not properly appreciated the decisions 6 Crl.Appeal No.342/2015 which preferred into service by the Accused and due of the Accused for payment with production and invoices and other records. That the trial Court has not properly appreciated the facts that the complainant has not produced supporting materials to prove the existence of all the allegations against the Accused. Accused in toto have contended that the trial Court has not properly appreciated all available materials with proper prospective.
4. The learned counsel for the Accused have reiterated the contents of the appeal memo. To rebut the contention urged the appeal memo, counsel for the Accused has produced the copy of the decisions of the Hon'ble High Court of Karnataka, copy of the judgment of the Hon'ble High Court of Karnataka dated 03/07/2013 passed Criminal Appeal No.2588/2009.
5. Counsel for the complainant to justify of the impugned judgment and order of sentence has placed reliance on the following citations:
7 Crl.Appeal No.342/2015
1. 2001 AIR SCW 4345 in case of Siddalingamma and another vs Mamtha Shenoy.
2. 2001 AIR SCW 3861 in case of Hiten P. Dalal vs Bratindranath Banerjee.
3. 2014 Supreme Court 71 in case of A.K.Singhania vs Gujarat State Fertilizer Company Limited & another.
4. 2009 Cri.L.J. 224 in case of Suresh Kallappa Makavi vs Madan Bindurao Desai and another.
5. 2006 Cri.L.J. 3760 in case of Smt.Umaswamy vs K.N.Ramanath.
6. Lower court record and appearance of complainant have been secured in the present appeal.
7. Heard the arguments of counsel for the parties.
8. Perused the papers.
9. In the light of the above material following points fall for decision making of this court.
i. Whether the court below has
properly appreciated available
materials with proper
prospective?
ii. What order?
8 Crl.Appeal No.342/2015
10. This court upon reappreciation of available material and with reference to prevailing legal aspect give finding to the above points as follows:-
Point No.1 : In the affirmative.
Point No.2 : As per final orders for the following:
REASONS
11. Point No.1 :- Complainants to bring home allege guilty of the Accused with production of cogent satisfactory evidence as of the Accused denied above charge leveled against them. The complainants have relied on the oral evidence of Pw.1 and 22 documents. Accused while admitting issuance of Exs.P.1 to 6 impugned cheques have denied their criminal liability for the alleged offences on the ground that, they were issued for the security. Since the Accused admitted issuance of impugned cheques in favour of complainant, Court of law has to raise statutory presumption under Section 139 of N.I. Act to be fact that impugned cheques issued in favour of the complainant to discharge existing liability. As per prevailing position of law Accused has to rebut the above presumption with probable evidence. Undisputedly accused neither adduced their evidence nor produced any documents to probabalize their plea. Since the Accused have admitted issuance of 9 Crl.Appeal No.342/2015 cheques in favour of complainant, initially burden of the complainant has to be discharged. It is true that, Pw.1 being the Power of Attorney Holder of M/s.Ultratec Cement Limited, through which complainant M/s.Grassim Industries Limited and subsequently merged. Pw.1 has admitted that, he was not working in M/s.Grassim Industries Limited. The oral evidence of Pw.1 does not played significant role to prove the existence of the complainant. Complainant has produced impugned cheques, statement of accounts and confirmation of accounts as per Ex.P.1. Accused has not denied Ex.P1. Accused have stated that impugned cheques was issued for the security.
Burden of proving the said fact is on the Accused. Accused failed to prove their defence. Thus, the above presumption is not rebutted. There is no dispute on the issuance of statutory notice in favour of the Accused is intact. Documents produced by the complainant abundantly established the existence of the version of the complainant.
12. Our Hon'ble High Court of Karnataka in the above case of Smt.Uma was pleased to hold that, even if cheque issued as a security for payment it is Negotiable Instrument Act and Accused will not exorbitant the criminal liability under section 138 of N.I.Act. Our Hon'ble Supreme Court of India in 10 Crl.Appeal No.342/2015 the above noted other decisions was pleased to note that, the Accused has to prove that the cheques was not been issued for any debt y leading any cogent evidence. Our Hon'ble Supreme Court of India in the above case of A.K.Singhania was pleased to hold that, complainant need not allege that director was in- charge and was not responsible for particular business for which cheque in question was issued. All the above noted decisions which cited by the complainant justify their again in the present case. Above unreported decision of Hon'ble High Court of Karnataka which relied upon the Accused, case on hand has no application to the case on hand as due of Accused has to established from Ex.P.21 confirmation letter of Accused issued in favour of complainant. Thus viewed from any angle, it has to be held that, the Accused are liable for the above noted offences in question.
13. The Hon'ble High Court with sound judicial application on mind properly appreciated all available materials with proper perspective. Hence this point is answered in affirmative.
14. POINT NO.2. In the light of the finding on above point appeal of Accused to be dismissed by confirming the 11 Crl.Appeal No.342/2015 impugned judgment and order of sentence. In the result this court proceed to pass the following;
ORDER Appeal of Accused is dismissed.
Judgment and order of sentence of the Court below is hereby confirmed.
Send back L.C.R. and copy of judgment to Court below.
(Dictated to the Stenographer, transcribed by her, corrected, signed and pronounced by me in open Court on this the 10th day of August, 2015) (K.R.Nagaraja), C/c of LXIX Addl. City Civil and Sessions Judge, BANGALORE CITY.
12 Crl.Appeal No.342/2015Judgment pronounced in open court, vide separate order;
ORDER Appeal of Accused is dismissed.
Judgment and order of sentence of the Court below is hereby confirmed.
Send back L.C.R. and copy of judgment to Court below.
(K.R.Nagaraja), C/c of LXIX Addl. City Civil and Sessions Judge, BANGALORE CITY.