Bangalore District Court
M/S. Maya Developers & vs Employees Welfare Fund on 13 January, 2021
IN THE COURT OF LVII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU
(CCH58)
Present: Smt. K.G.Shanthi, B.Com, LL.M.,
LVII Addl.City Civil & Sessions Judge
Mayo Hall Unit, Bengaluru.
Dated this the 13th day of January, 2021
Criminal Appeal No.25106/2017 C/W 25154/2017
Crl.A.No.25106/2017
Appellants: 1. M/s. Maya Developers &
Inrastructure Pvt. Lt.,
having its registered office at
E149, 1st Floor,
Opp. Sainik Vihar, Gate No.1,
Rishi Nagar, Rani Bagh,
New Delhi110034
Represented by its Managing
Director,
Mukesh soni.
2. Mukesh soni S/o. M.L. Soni,
Director,
M/s. Maya Developers &
Infrastructure Pvt. Ltd.,
having its registered office at
E149, 1st Floor, Reshinagar,
Opp. Sainik Vihar, Rani Bagh,
Gate No.1, Delhi110034.
Vs
2 Crl.Appeal No.25106/2017
C/W 25154/2017
Respondent: Employees Welfare Fund, HAL
(BC)
Hindustan Aeronautics Limited,
Bengaluru - 560017
Represented by its Secretary.
Crl.A.No.25154/2017
Appellant: Employees Welfare Fund, HAL
(BC)
Hindustan Aeronautics Limited,
Bengaluru - 560017
Represented by its Secretary.
Vs
Respondents: 1. M/s. Maya Developers &
Inrastructure Pvt. Lt.,
having its registered office at
E149, 1st Floor,
Opp. Sainik Vihar, Gate No.1,
Rishi Nagar, Rani Bagh,
New Delhi110034
Represented by its Managing
Director,
Mukesh soni.
2. Mukesh soni S/o M.L. Soni,
Director,
M/s. Maya Developers &
Infrastructure Pvt. Ltd.,
having its registered office at
E149, 1st Floor, Reshinagar,
3 Crl.Appeal No.25106/2017
C/W 25154/2017
Opp. Sainik Vihar, Gate No.1,
Rishi Nagar, Rani Bagh,
Gate No.1, New Delhi110034.
(By M/s.Lawyersinc Advocates &
Solicitors)
*********
JUDGMENT
The above two appeals arising out of the impugned judgment passed by the XV Additional Small Causes Judge and XXIII ACMM, Bengaluru, in C.C.No.26578/2011 dated 23.6.2017.
2. The Criminal Appeal No.25106/2017 filed by the accused and Criminal Appeal No.25154/2017 filed by the complainant. So, in order to avoid confusion, ranks of the parties taken in this appeal as taken by the Trial Court.
3. The brief facts of the case is that, complainant is a registered Society under the name and style of Employees Welfare Fund HAL (B.C.). According to complainant, accused No.1 is a company 4 Crl.Appeal No.25106/2017 C/W 25154/2017 incorporated under the provisions of Companies Act. The accused No.2 is the Director and Signatory to the Cheque. The complainant was looking for the suitable lands for the purpose of formation of residential sites to its members. In the month of March2009, the accused approached the complainant saying that they have got absolute right, title and interest and marketable title with uninhabited rights of alienation over the land bearing various survey numbers to the extent of 205 acres situated at Yagatta, Chandrapura and Vadigehalli village of Hosakote Taluk. The accused has promised the complainant that, they are ready to sell the property after developing the land and carving out plots as per the norms fixed by the BMRD. The complainant agreed to purchase the land @ Rs.550/ sq.feet and accused has received the cheque No.434436 dtd.6.3.2009 from the complainant to the tune of Rs.1,00,00,000/ drawn on Punjab National 5 Crl.Appeal No.25106/2017 C/W 25154/2017 Bank, HAL Complex, Bengaluru, towards part sale consideration. But the accused failed to perform his part of contract; he has not furnished particulars of survey numbers. Accused made representation that he has tie up with owners of land to the extent of 94 acres. Further, furnished names of owners and accordingly agreement was signed on 11.7.2009. Later, on verification, the complainant came to know that none of the owners whose names were furnished by the accused had ever agreed to sell the lands to the accused. So, complainant issued notice to the accused to perform the terms of the agreement as agreed within 45 days, but accused has not complied. Hence, complainant terminated the agreement dtd.11.7.2009 in its letter dtd.28.1.2010 and demand to refund Rs.1,00,00,000/ which received by the accused by way of advance.
6 Crl.Appeal No.25106/2017
C/W 25154/2017
4. The accused had issued cheque for Rs.1,00,00,000/ with the understanding in case the accused failed to perform his part of obligation, within 6 months, complainant is entitled to present the cheque for encashment. Since accused failed to perform the terms of agreement, cheque issued by the accused bearing No.629838 dated 11.1.2010 drawn on HDFC Bank Ltd., L.203, Model town, Rewari, Hariyana is presented for encashment on 7.7.2010 through its Banker namely Punjab National Bank, Vimanapura HAL, Bengaluru, the same was dishonoured for the reason "Stop payment". The bank issued endorsement on 9.7.2010. After receipt of intimation from the Bank, complainant issued legal notice to the accused on 14.7.2010 under certificate of posting and through DTDC Courier calling upon the accused to pay the cheque amount. Notice issued through DTDC was delivered to accused on 5.8.2010. But the notice sent 7 Crl.Appeal No.25106/2017 C/W 25154/2017 through RPAD has been returned with the note "The addressee is not in the address". The very fact is, the notice sent under certificate of posting and courier had been delivered, but the accused neither replied to the notice nor complied to the demand made in the notice.
5. Hence, complainant constrained to file complaint before the Court u/S.200 Cr.P.C. r/w.138 of N.I. Act. After filing the complaint, the Trial Court taken cognizance and issued summons to the accused. The accused appeared before the Court and released on bail. Plea of the accused recorded and he pleaded not guilty. Hence, complainant in order to establish his case, examined its Secretary as PW1 and got marked Exs.P1 to P11. After recording Statement of the accused u/S.313 Cr.P.C., accused lead the defence evidence. The Director of the accused Company himself examined as DW1 and got marked Exs.D1 to D8. After hearing the argument, the Trial Court Judge 8 Crl.Appeal No.25106/2017 C/W 25154/2017 convicted the accused u/S.255 (2) of Cr.P.C. for the offence punishable u/S.138 of N.I. Act. The accused No.2 is sentenced to pay Rs.1,50,00,000/ and in default of payment of fine shall undergo S.I. for one year. Further, the Trial Court acting u/S.357(1) (B) of Cr.P.C. ordered that out of fine amount, the complainant is entitled for Rs.1,49,95,000/ and remaining amount of Rs.5,000/ is confiscated to the State.
6. Aggrieved by the above said judgment, accused preferred appeal on following grounds: The accused/appellant contended that, he failed to understand the evil and malice design and con tricks of the office bearers of the complainant institution. So they entered into agreement. Further contended that they have filed criminal complaint in Rewari, Haryana against the President of the Welfare Fund Mr.Gurulingappa Edravi and others in CHI 9 Crl.Appeal No.25106/2017 C/W 25154/2017 No.7318/2013 pending before learned Magistrate at Rewari. It is stated that the accused opened an office in Bengaluru for the purpose of developing the land and conversion of land into residential sites to the employees of the complainant Society. They mutually exchanged security cheques. It also contended that Cheque bearing No.629838 issued by the accused as security, which is subject matter of this case.
7. The accused/appellant contended that he submitted his written statement under the provision of Section 313(5) of Cr.P.C. and he stepped into witness box and filed his evidence by way of affidavit. Later, he filed application u/S.91 of Cr.P.C. along with list of witness and to summon the documents, but the said application has been rejected by the Trial Court. It is also contended that Trial Court not given sufficient opportunity to the accused to lead defence evidence. 10 Crl.Appeal No.25106/2017
C/W 25154/2017
8. Further contended that Trial Court failed to appreciate the admitted facts of PW1 and further ignored the fact that the person who is responsible for the entire transaction not stepped into the witness box. Further contended that Trial Court has not appreciated that the complainant association not complied the terms and conditions of MOU Ex.P10, in spite of PW1 admitted the fact that they have received letter correspondence about noncompliance of terms and conditions.
9. The Trial Court failed to appreciate that the complainant paid Rs.1,00,00,000/ amount to the accused, which was illegal money and it was taken from the fraudulent company by name SIRIGOLD. The payment made by the complainant Society to the accused is not the amount of the members of the Society, on the other hand, it is the amount received from SIRIGOLD. The office bearers of the complainant 11 Crl.Appeal No.25106/2017 C/W 25154/2017 had conspired a plan to dupe the accused with the help of other conman such as V.Penchalaiah, Anil Upadhyaya, SIRIGOLD and other actors behind the scene. The office bearers of the complainant association wanted to dupe and wanted to make money in the pretext of developing sites for their members. But the Trial Court has not appreciated this fact.
10. The accused contended that Trial Court failed to appreciate that cheque issued by the accused to the complainant is for security and not for the legal discharge of enforceable debt. The learned Magistrate not looked into the complete defence taken by the accused and his evidence not appreciated properly. The Trial Court failed to take note all the ingredients of Sec.138 of N.I. Act and Trial Court ignored the settled position of law that when the accused has to rebut the presumption u/S.139, the standard of proof for doing so is that of "Preponderance of probabilities". The Trial 12 Crl.Appeal No.25106/2017 C/W 25154/2017 Court committed grave mistake in passing the sentence without considering the material evidence on record, which cause injustice to the accused. It also contended that complainant failed to prove that cheque is issued by the accused for legal enforceable debt and failed to appreciate the irregularities and divergent facts available in the documentary proof. So, the impugned order dated 23.6.2017 is devoid of merits, baseless and opposed to to law. Accordingly, accused prays for set aside the judgment and sentence dated 23.6.2017 in C.C.No.26578/2011.
11. The complainant being appellant in the Criminal Appeal No.25154/2017, has contended that the operative portion of the judgment dated 23.6.2017 is contrary to the Section 354 of Cr.P.C. Further contended that the learned Magistrate ought to have sentenced accused No.1 along with accused No.2 to pay fine jointly and severally after having pass the 13 Crl.Appeal No.25106/2017 C/W 25154/2017 order of conviction against both the accused Nos.1 and 2 directing to pay the fine equivalent to double the value of the cheque involved in the case and sentence passed is grossly insufficient and not in consonance with the spirit of the objection of Section 138 of N.I. Act. Accordingly, complainant/appellant prays for modify the judgment by sentencing both accused Nos.1 and 2 to pay double the amount of the Cheque amount involved in the case.
12. On filing of the appeal, summons has been issued to the respondents. They appeared and engaged their Counsel.
13. LCR called. Received.
14. Arguments of both the parties heard.
15. Based on the appeal, the points arise for my consideration is: 14 Crl.Appeal No.25106/2017 C/W 25154/2017 i. Whether the Appellant/accused in Criminal Appeal No.25106/2017 proves that impugned Judgment of the XV Addl.Small Causes Judge and XXIII ACMM, in C.C.No.26578/2011 dated 23.6.2017 is illegal, perverse, contrary to the law and call for interference by this Court, which is liable to be set aside?
ii. Whether the Appellant/complainant in Criminal Appeal No.25154/2017 proves that impugned sentence of the XV Addl.Small Causes Judge and XXIII ACMM, in C.C.No.26578/2011 dated 23.6.2017 is required to be modified that fine amount imposed is grossly insufficient, which is liable to be set aside?
iii. What order?
16. My findings on the above points are as under:
Point No.(i) : In the Negative Point No.(ii) : In Partly Affirmative Point No.(iii): As per the final order for 15 Crl.Appeal No.25106/2017 C/W 25154/2017 the following:
REASONS
17. Point No.(i) It is the definite case of the complainant that they intend to form the houses to its members. Hence, in the month of March2009, the accused No.2 approached the complainant saying that he has got absolute right, title and interest and marketable title with uninhabited rights of alienation over the land situated at Yagatta, Chandrapura and Vadigehalli village of Hosakote Taluk. The accused has promised the complainant that, they are ready to sell the property after developing the land and carving out plots as per the norms of BMRD and to the requirement of the complainant. Accordingly, they entered into agreement on 11.7.2009 and the accused received advance amount of Rs.1,00,00,000/. He had agreed to sell the land to the accused, but he failed to keep up his promise as agreed. Hence, complainant 16 Crl.Appeal No.25106/2017 C/W 25154/2017 terminated the agreement on 11.7.2009 by its letter dated 28.1.2010 and asked accused to refund the amount of Rs.1,00,00,000/ which received by him by way of advance. The accused issued Cheque bearing No.629838 dated 11.1.2010 drawn on HDFC Bank Ltd., Model Town, Rewari, Hariyana, in favour of the complainant for discharge of legally enforceable debt. When the cheque has been presented for encashment through complainant Bank Punjab National Bank, Vimanapura, HAL, Bengaluru, which has been dishonoured for the reason "Stopped payment" and Bank issued endorsement in favour of complainant on 9.7.2010. Later, complainant issued legal notice to the accused on 14.7.2010 on different modes, which has been duly served on the accused, but accused failed to comply the demand made in the notice. Hence, within stipulated period complainant filed complaint. The accused admitted transaction with the complainant 17 Crl.Appeal No.25106/2017 C/W 25154/2017 and he has taken up contention that the complainant was not cooperative and not furnished the documents as per MOU, hence he could not carry out the work as agreed. He has taken up contention that he has not issued cheque for discharge of debt or liability, on the other hand, cheque of Rs.1,00,00,000/ issued in favour of the complainant only for security. Further he has taken up contention that whatever Rs.1,00,00,000/ paid by the complainant in favour of this accused is illegal money and the amount has been received by the Society from its members. According to accused, office bearers of the complainant Society, in fact, to make unholy gain and he is not liable to pay cheque amount or he has not committed any offence as alleged by the complainant.
18. In order to establish the case of the complainant, PW1 is examined, who is authorized 18 Crl.Appeal No.25106/2017 C/W 25154/2017 person of the complainant Society. The authorization letter is marked as Ex.P1. The Cheque issued by the accused is marked as Ex.P2. The signature of accused is marked as Ex.P2(a). The endorsement issued by the Bank marked as Ex.P3. Copy of the legal notice marked as Ex.P4 and mode of certain legal notice and relevant documents are produced and marked as Exs.P4 to 10.
19. After recording evidence of complainant, Statement of the accused u/S.313 Cr.P.C. is recorded. The accused denied incriminating evidence available against him and he expressed his intention to lead his evidence. Further, he answered to the 313 Cr.P.C. in written form. He specifically contended that, after executing Memorandum of Understanding with Mr.V.Penchalaiah on 6.3.2009, an Agreement of Collaboration and Sell was executed on the same day 19 Crl.Appeal No.25106/2017 C/W 25154/2017 between accused Company and the complainant Society for development of 205 acres of land at Hosakote Taluk, at the rate of Rs.551/ per square feet and cheque for Rs.1,00,00,000/ was handed over to the accused Company. But the said Penchalaiah started to demand Rs.5,00,00,000/ as advance as an advance against purchase of land as per the terms of MOU and he has not provided the document of title as demanded by the accused but he was insisting for payment of Rs.5,00,00,000/, thereby tried to cheat the accused. Subsequently, they entered into fresh agreement to adjust the cheque of Rs.1,00,00,000/ even given the advance for the purchase of land as per the previous agreement dated 6.3.2009 against the fresh agreement. The accused contended that he issued cheque bearing No.629838 in lieu of earlier cheque No.629803 dated 24.11.2009, which is subject matter of the present case. As per the agreement, 20 Crl.Appeal No.25106/2017 C/W 25154/2017 complainant Society bound to provide documents i.e. list of Board members of the Complainant Society, list of the buyers and their consent letters, application forms for residential sites, Authorization letters of the entire persons of the society who signed the Agreement of Collaboration and Sale, further name and details of the Bankers who shall be responsible to make 25% of the amount initially. These documents are not provided by the complainant Society. According to accused they have given instruction to their Bank to stop the payment since complainant Society cheated them. In this regard, they have initiated criminal proceedings against them.
20. Now it is to be seen whether complainant has made out case to constitute the offence punishable u/S.138 of N.I. Act. Section 138 reads as under:
(i) that there is a legally enforceable debt;21 Crl.Appeal No.25106/2017
C/W 25154/2017
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre supposes a legally enforceable debt;
(iii) that the cheque so issued had been returned due to insufficiency of funds.
21. PW1 is subjected to crossexamination by the accused. No suggestion has been made to PW1 that he has not participated in the transaction and suggestion has been made that complainant's Society is illegal Society. Further suggestion has been made that accused has not issued Cheque for discharge of liability, on the other hand, it is issued as security. MOU has been confronted to the witness and marked as Ex.D1. PW1 admitted that Mr.Gurulingappa Edravi is former Secretary of complainant's Society and PW1 further admitted that on 6.3.2009 there was cancellation of agreement letter and there was one 22 Crl.Appeal No.25106/2017 C/W 25154/2017 more agreement and accused issued cheque in favour of the complainant Society as security. The suggestion has been made to PW1 that as per the terms of the understanding, Society not furnished documents, but the said suggestion has been denied by the witness. He denied that they failed to fulfill the terms and conditions of the agreement and hence accused could not perform his part of the contract. Further he has admitted that cheque has been dishonoured for the reason "Stopped Payment". Further he has admitted that complainant issued notice to him calling upon to pay cheque amount. Accused admitted that said notice has been served on him, but he has not given reply. He has not raised any objection with regard to service of notice. On perusal of the oral and documentary evidence etc. it reflects that complainant discharged initial burden which constitute for the offence punishable u/S.138 of N.I.Act. 23 Crl.Appeal No.25106/2017
C/W 25154/2017
22. There is a dispute between complainant and accused relating to MOU. It is the definite case of the accused that, he has issued Cheque as security. It is the contention of the complainant that accused failed to comply the terms and conditions and he has not purchased any property as he stated by him and hence agreement was cancelled. Later, a separate agreement instructions entered into. The complainant had produced Ex.P10 i.e. Agreement of Collaboration and Sale dated 11.7.2009. This document is not disputed by the accused. During the crossexamination, DW1 has admitted that Ex.P10 project should be completed within two years in 2 phase from the date of agreement. Further he has admitted that as per the agreement, they should procure 100 acres of land. Further he admitted that he has no document to show that the accused acquired 100 acres of land in the name of Company. The accused admitted the cheque 24 Crl.Appeal No.25106/2017 C/W 25154/2017 Ex.P2 and signature. He has also admitted that as per the sale agreement accused had issued Cheque for Rs.1,00,00,000/ under Cheque No.629803 as security for performance. Further he has admitted that as per Ex.D3 last two lines has mentioned that, further we hereby undertaken that in case we are unable to provide you the land as described above manner, office will be at liberty to encash the said cheque. This letter is issued by the accused in favour of the complainant. So, admittedly no document is with the accused, so they have not purchased lands as agreed within stipulated period. He also admitted that before entering into agreement as per Ex.P10, they have got cancelled the agreement dated 6.3.2009. DW1 averred that as per Ex.P10 clause 4 they have acknowledge the receipt of Rs.1,00,00,000/ which he already taken under earlier agreement. He has further admitted that he cancelled earlier cheque and issued new cheque as 25 Crl.Appeal No.25106/2017 C/W 25154/2017 per Ex.P2. He further admitted that within six months the accused have to procure 100 acres of land and promised to procure 100 acres at first phase within 6 months. He further admitted that he has no sale deed to show that land measuring 94 acres stands in the name of accused Company. These admissions are very clear that accused not made any attempt to procure the land as agreed.
23. DW1 further admitted that as per the agreement dated 11.7.2009 six months will be completed on 10.1.2010, but he has not procured any land as per MOU. Further he admits that, if he has not procured the land within stipulated period, he is duty bound to refund the amount of Rs.1,00,00,000/ to the complainant, but he says complainant has not completed the formalities. According to accused, the complainant not completed formalities mentioned in 26 Crl.Appeal No.25106/2017 C/W 25154/2017 Ex.D1, which is Agreement of Collaboration dated 11.7.2009. The relevant clause is marked as Ex.D1(a). It is pertinent to note that, if complainant not completed formalities, the accused is duty bound to call upon the complainant to complete the same. It is pertinent to note in this case that, though parties entered into Agreement, accused not made any attempt to procure the land as agreed. When the complainant insisted for refund of the amount, accused issued a Cheque and later they requested the Bank to stop payment i.e. not to honour the Cheque. DW1 in his crossexamination admitted that when the Cheque came for collection, there was no amount of Rs.1,00,00,000/ in the said account and also at that time they have given instructions to Bank to stop payment. From the conduct of the accused it reflects that, it is not complainant tried to cheat accused, on the other hand, the accused themselves tried to cheat 27 Crl.Appeal No.25106/2017 C/W 25154/2017 complainant with ulterior motive and thereby to make unholy gain.
24. Further, when the Bank has issued endorsement, complainant issued notice to the accused calling upon him to make payment. But the accused neither given reply nor paid Cheque amount as demanded in the notice. On the other hand, he says that he already given reply to the said notice. But what reply he has given to the complainant is not putforth before the Court.
25. The accused taken up contention that the amount of Rs.1,00,00,000/ paid by the complainant as advance is not a legal money, on the other hand, it is illegal one. Further he has contended that the amount which is paid is not collected from the members of the Society, on the other hand, it is 28 Crl.Appeal No.25106/2017 C/W 25154/2017 received from the Siri Gold Farms. I am of the opinion that the accused has not raised any doubt at the time of receiving Rs.1,00,00,000/ from the complainant; he has not bothered to verify what is the source of complainant to pay Rs.1,00,00,000/, but when he issued cheque for repayment, this question arise in his mind. He has taken a stand that amount paid by the complainant is illegal one. In my opinion, when he received amount without making enquiry and the complainant has paid the amount as advance, it is duty cast upon the the accused to discharge his duty in terms of agreement, but accused failed to discharge his part of the obligation and when complainant asked to refund the amount, he issued cheque then questioning the source of the complainant, which is not permissible.
26. The evidence of the complainant it reflects that complainant borrowed amount from Siri Gold 29 Crl.Appeal No.25106/2017 C/W 25154/2017 Farms and the said amount was sent to the accused Company by way of RTGS. When the accused received money from the complainant and now he cannot rise such contention that amount paid by the complainant to him is illegal one.
27. It is pertinent to note that when the notice is issued by the complainant as per Ex.P4, accused requested the complainant Society not to present the cheque immediately. So, complainant waited till 7.7.2010 then only he presented the cheque for encashment. The documents it reflects that though notice is served on accused on 5.8.2010, but he has not bothered to make payment or to contact the complainant. It is admitted fact that the accused has to procure 100 acres of land within 6 months from the date of agreement, but he failed to procure the same as per the terms described in Ex.D1. According to 30 Crl.Appeal No.25106/2017 C/W 25154/2017 accused, complainant Society and Mr.V.Panchalaya caused obstruction for the development of the land. But in this regard, no materials available before the court to substantiate the contention.
28. According to accused Mr.V.Panchalaya is not fair person and he insisted the accused to pay Rs.5,00,00,000/ to him and also contended that there are many cases against Panchalaya, which resulted in cancellation of MOU on Panchalaya. In this regard, DW1 admitted that whenever they associating with third person, they used to make enquiry of the background of that person. He also deposed that he collected information from the Service providers. So, it is clear that after verifying business credentials, the accused committed with V.Panchalaya. Hence, now he cannot raise contention that Panchalaya demanded Rs.5,00,00,000/ from him.
31 Crl.Appeal No.25106/2017
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29. The accused taken up contention that complainant did not produce any document to demonstrate that they are a legal entity with proper renewal from time to time. Accused now questions the legal entity of the complainant. The accused entered into agreement with the complainant and received Rs.1,00,00,000/ but he failed to comply the terms of agreement and now he questions the existence of complainant Society, when he is not liable to make payment.
30. The another contention taken by the accused/appellant that Trial Court not given sufficient opportunity to put forth his defence to rebut the presumption. In this regard, the appellant counsel relied on the decisions reported in:
1) 1954 AIR 455 Ronald Wood Mathams Vs. State of West Bengal of Hon'ble Supreme Courtof India, wherein it is observed that:
32 Crl.Appeal No.25106/2017
C/W 25154/2017 Absence of opportunity to produce defence evidenceEffect of court's duty in this respect. The argument in support of these appeals is that the trial of the appellants had been vitiated by reason of the fact that they had no reasonable opportunity to examine their witnesses, and that their convictions were accordingly bad. Whatever one may think of the merits of the appellants' contention, they cannot be convicted without an opportunity being given to them to present their evidence, and that having been denied to them, there has been no fair trial , and the conviction of th appellants, S.K. Dutt, J.K. Bose and P.C. Ghose, cannot stand.
2) AIR 1991 SC 1346 Mohanlal Shamji Soni Vs. Union of India (UOI) and others, of Hon'ble Supreme Court of India, wherein it is held:
Held: Evidence Fresh/Additional evidence Cr.P.C., S. 540 (old) /S. 311 (new) - Evidence Act, S. 165 Under these provisions, any Court by exercising its discretionary powers at any stage of enquiry, trial or other proceedings can summon any person as a witness or examine any person in attendance though not summoned as a witness or 33 Crl.Appeal No.25106/2017 C/W 25154/2017 recall or reexamine any person already examined , who are expected to be able to throw light upon the matter in dispute. The principle underlying these provisions is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. This power is, however, subscribed by the principle that the evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. This power should not be used for filling up the lacuna left by the prosecution or defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side. The additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
3) Criminal Appeal No.815/1998 in the case of Hoffman Andreas Vs. Inspector of Customs, Amritsar.
4) 2009 (4) Mh.L.J. 155 Sanjay Mishra Vs. Kanishka Kapoor @ Nikki and another, wherein it is held:
(a) Negotiable Instruments Act, SS. 138 Explanation and 139 - Dishonour of cheque -34 Crl.Appeal No.25106/2017
C/W 25154/2017 Respondent acquitted of offence punishable under section 138, Negotiable Instruments Act - Amount allegedly advanced to the respondent was unaccounted cash - Applicant had not disclosed the same to the income tax department at the relevant time and therefore it was an unaccounted amount - It could not be said that liability to repay unaccounted cash amount was a legally enforceable debt within the meaning of explanation to section 138.
5) AIR 1960 PUNJAB 573 Bawa Singh Vs. Jagadish Chand and other of Hon'ble Punjab High Court, wherein it states:
(A) Evidence Act (1of 1872), S.114 - Party withholding best evidence - Presumption.
A very strong presumption must be raised against a party who withholds a document, which was the best evidence and abstains himself from appearing in the witness box, especially when the version given against him by the opposite party is supported and corroborated by the scribe.
6) AIR 1971 ALLAHABAD 304 Smt. Kamla Kunwar Vs. Ratan Lal and other of Hon'ble Allahabad High Court, wherein it states:
35 Crl.Appeal No.25106/2017
C/W 25154/2017 (1) Evidence Act (1 of 1872), S.114 Non production of material witnesses Presumption that their testimony would have damaged Petitioner's case held should be raised in the circumstances of the case.
7) AIR 1982 CALCUTTA 294 Dukhiram Dey Vs. Mrityunjoy Prosad Daw and other of Hon'ble Calcutta High Court, wherein it states:
(D) Evidence Act (1 of 1872), S.3 S.114 Adverse inference - suit for declaration of title -
Vendor of plaintiff is material witness - Vendor not examined by plaintiff No explanation for his nonexamination given - Address given by vendor in his affidavit and kobala found not in existence
- Held, the vendor of plaintiff was fictitious person and his affidavit had no value.
31. Further, on perusal of record it reflect that accused himself examined as DW1 and he lead evidence in detail and he subjected to cross examination by complainant. Further he had produced Exs.D1 to D8 in support of his contention. It is pertinent to note that at the time of recording 36 Crl.Appeal No.25106/2017 C/W 25154/2017 statement of the accused u/S.313 Cr.P.C. he had given answer in writing. Any explanation given by the accused at the time of recording 313 Cr.P.C. statement which cannot be taken against accused. On the other hand, in this case, DW1 himself given detail evidence and he has given admission with respect to the transaction, which is rightly appreciated by the Trial Court. Fair opportunity given to the accused to rebut the presumption. So, I am of the opinion that, now he cannot claim that opportunity is not given by the Trial Court since Court rejected his interim application.
32. The record it reflects that accused filed application to summon the witnesses as he wanted to examine the members of the complainant Society, in support of his case. It is not business of the accused to examine the members of the Society to rebut the presumption when he admitted issuance of cheque in 37 Crl.Appeal No.25106/2017 C/W 25154/2017 favour of the complainant. It is pertinent to note that once he received advance amount of Rs.1,00,00,000/, but when he fails to fulfill his promise, again separate agreement is entered. According to accused, the complainant Society itself has not performed terms of the agreement and not provided the documents shown with list of the members, name and details of the Bankers/Authorized persons who are responsible to make 25% of the amount committed etc. All these documents will not come to the aid of the accused.
33. The presumption u/S.139 of N.I.Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability. So said presumption do not relate to the existence of legally enforceable debt or liability.
34. Further as per Section 118(a) of N.I. Act, there is a rebuttable presumption that every negotiable 38 Crl.Appeal No.25106/2017 C/W 25154/2017 instrument was made or drawn for consideration and when such instrument is accepted, it shall be presumed that it was accepted for consideration. Further, Section 118(b) states - there is a presumption that every negotiable instrument bearing a date was made or drawn on such date.
35. The accused failed to rebut the presumption with cogent material evidence. On the other hand, PW1 stood well in his crossexamination. On looking into the evidence in detail, I am of the opinion that the Trial Court rightly appreciated the evidence of both parties and rightly convicted the accused. I do not find any reasons to interfere with the impugned order passed by the Trial Court. The Trial Court rightly appreciated all the points and come to the right conclusion. I do not find any reason to interfere with the order of the Trial Court. Accordingly, Point No.(i) is answered in Negative.
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36. Point No.(ii) :According to complainant, Trial Court ought to have imposed sentence of fine double the cheque amount and Trial Court ought to have sentenced accused No.1 along with accused No.2 to pay fine jointly and severally.
37. The accused No.1 is M/s.Maya Developers & Infrastructure Pvt.Ltd. and accused No.2 is the Director of M/s.Maya Developers. The accused No.2 has issued cheque in favour of the complainant on behalf of himself and on behalf of accused No.1. So, in my opinion, when the Trial Court passed conviction order it has to pass sentence both on accused No.1 and 2 for the reason that any board of Director may change but Company stands for ever. The company is having legal identity. So, Trial Court ought to have convicted accused Nos.1 and 2 sentencing them to pay fine 40 Crl.Appeal No.25106/2017 C/W 25154/2017 holding accused No.1 and 2 jointly and severally liable to pay fine amount.
38. The object of enactment is to inculcate faith in the efficacy of banking operations and credibility in transacting business on the Negotiable Instruments. It facilitates the settlement of payments in business activities as they pass freely from holder to holder due to easy transferability of value as instrument.
39. So, I am of the opinion that regarding passing of sentence by the Trial Court against accused No.2 only is deserves for interference. Regarding compensation is concerned, there is no reason to interfere with the order of the Trial Court. Accordingly, Point No.(ii) is answered in the Partly affirmative. 41 Crl.Appeal No.25106/2017
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40. Point No.(iii): In view of the finding on point Nos.(i) and (ii), I proceed to pass the following: ORDER The Criminal Appeal No.25106/2017 filed by the Appellant u/S.374(3) Cr.P.C. is dismissed.
The Criminal Appeal No.25154/2017 filed by the Appellant u/S.372 of Cr.P.C. is partly allowed.
The Oder of sentence passed by XV Addl.Small Causes Judge & XXII ACMM, Bengaluru in C.C.No. 26578/2011 dated 23.6.2017 is modified to the extent accused Nos.1 and 2 jointly and severally are hereby sentenced to pay fine of Rs.1,50,00,000/ and in default of payment of fine, accused No.2 shall 42 Crl.Appeal No.25106/2017 C/W 25154/2017 undergo S.I. for a period of one year.
Office is hereby directed to keep the copy of this judgment in Crl.Appeal No.25154/2017.
Send back the records to the Trial Court along with the copy of the Judgment.
(Dictated to the Judgmentwriter, transcribed and computerized by him and after carrying out corrections by me, print out taken by him and then pronounced by me in open Court on this the 13nd day of January, 2021) (Smt.K.G. SHANTHI) LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
43 Crl.Appeal No.25106/2017C/W 25154/2017 Heard arguments.
Judgment pronounced in open court (vide separate Judgment) ORDER The Criminal Appeal No.25106/2017 filed by the Appellant u/S.374(3) Cr.P.C. is dismissed.
The Criminal Appeal No.25154/2017 filed by the Appellant u/S.372 of Cr.P.C. is partly allowed.
The Oder of sentence passed by XV Addl.Small Causes Judge & XXII ACMM, Bengaluru in C.C.No. 26578/2011 dated 23.6.2017 is modified to the extent accused Nos.1 and 2 jointly and severally are hereby sentenced to pay fine of 44 Crl.Appeal No.25106/2017 C/W 25154/2017 Rs.1,50,00,000/ and in default of payment of fine, accused No.2 shall undergo S.I. for a period of one year.
Office is hereby directed to keep the copy of this judgment in Crl.Appeal No.25154/2017.
Send back the records to the Trial Court along with the copy of the Judgment.
LVII Addl. City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.