Bangalore District Court
/ Accused: 1. M/S.Deebe Power Systems ... vs / M/S.Jeevan Diesels & Electrical ... on 8 August, 2018
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 8th day of August, 2018
PRESENT :- SRI.S.A.CHIKKORDE, M.A.,LL.M.,
LXI Addl. City Civil & Sessions Judge,
Bangalore City.
Criminal Appeal No.503/2008
Appellant / Accused: 1. M/s.Deebe Power Systems Pvt. Ltd.,
(Under Liquidation) TF2, City Point, 3rd
Floor, No.13, Infantry Road, Bangalore-
01
2. K.Balasubramanyam
Aged about 43 years
Ex-Director
M/s.Deebe Power Systems Pvt. Ltd.,
(Under Liquidation)
No.13, Infantry Road
Bangalore-01.
(By Sri.L.Mohan, Advocate)
.V/s.
Respondent / M/s.Jeevan Diesels & Electrical Limited,
Complainant: No.75, Farah Commercial Complex, J.C.
Road, Bangalore-02 Rep. by its
Accounts Officer,
Sri K.Madhusudan
S/o.K.V.Krishnaiah
Aged about 39 years
No.75, Farah Commercial Complex,
J.C. Road, Bangalore-02.
2 Crl.A. No.503/2008
JUDGMENT
The appellant/accused has preferred this appeal under Sec.374(3)(a) praying for setting aside the judgment of conviction and sentence passed by the learned XV ACMM, Bangalore in C.C. No. 32037/2001 dtd: 30.5.2008.
2. The parties are referred as per their ranks in the court below.
3. The facts leading to the appeal are as under:
The 2nd accused being the director of the 1st accused company had purchased the diesel generating sets from the complainant company for a sum of Rs.34,53,824.10ps towards discharge of the said liability had issued five cheques in favour of the complainant for a sum of Rs.1,00,000/- each dt.25.3.00, 25.4.00, 25.5.00, 25.6.00 and 25.7.00 drawn on Bank of India, J.C. Road, Branch, Bangalore infavour of complainant and when the said cheques were presented by the complainant for encashment the same were returned dishonour with an endorsement "Payment stopped by the drawer". Thereafter the complainant got issued demand notice dt.14.9.00 to the accused which was served on the accused, but the accused failed to pay the cheque amount and also failed to give reply to the said demand notice. Under these circumstances complainant constrained to file complaint against the accused/appellant for the offences 3 Crl.A. No.503/2008 punishable under Section 138 of N.I. Act and sought for taking legal action against him.
4. After filling of the complaint, the Court below took cognizance of the offence and registered the case against the accused. In response to the summons, the accused entered appearance through counsel. The Court below recorded the plea of the accused wherein the accused pleaded not guilty and claimed for trial.
5. The complaint to prove its case examined its authorized representative/Accounts Officer as PW-1 and got marked in all 53 documents at Ex.P.1 to Ex.P.53 and closed its side evidence. The statement of the accused was recorded under Section 313 of Cr.P.C. wherein the accused denied the incriminating evidence appearing against him. To rebut the case of the complainant the accused has not got examined himself nor examined any other person on its behalf but during the course of cross-examination of PW-1 accused got marked ExD.1 to Ex.D.216 documents. Hence, after hearing both the sides the Court below came to the conclusion that the accused committed the offence under Section 138 of N.I. Act and convicted the appellant/accused No.1 and 2 under Section 255(2) of Cr.P.C. and accused No.2 was sentenced to pay fine of Rs.5,80,000/-, in default to suffer S.I. for six months and if the fine amount is recovered from the accused an amount of Rs.5,75,000/- shall be paid as compensation to 4 Crl.A. No.503/2008 the complainant under Section 357 of Cr.P.C., and balance amount of Rs.5,000/- shall be confiscated to the state.
6. Being aggrieved by the said judgment dt.30.5.2008 the appellant herein came up before this appeal assailing the propriety and correctness of the judgment on the following grounds:
That the trial court is ex-facia passed the judgment under this appeal, is erroneous, illegal and liable to be set aside since the impugned judgment is perverse and based on mere surmises and conjunctures and also on the ground that trial court failed to look into and discuss oral and documentary evidence on record and giving an appropriate finding on all such points and thereby rendered unjustifiable order and the impugned judgment does not cover disputed points in its true prospective but has simple brushed aside since it considered in its true prospective would have acquitted the accused without a second thought. It is also contended on the ground given reasons narrated distortion of true facts as mentioned in complaint and trial court having recorded evidence and heard case has been fully conscious of the fact that the very complaint was lodged before trial court on 21.10.2000 has been defective and without taking note of the said fact trial court failed to consider the said aspect and it has been specific case of the complainant both in notice at Ex.P.21 and complaint that long prior to 6.11.1997 accused was due for Rs.34,53,824.10ps and as against the said dues issued 33 cheques of Rs.1,00,000/- each and 22 cheques for 5 Crl.A. No.503/2008 Rs.50,000/- each and forwarded the same with letter dt.6.11.1997 towards pending bills and also on the ground that trail court omitted to mention that the accused was due Rs.34,00,000/- and odd and as on the date of the issuance of 35 cheques which goes to the root of the complaint and trial court has deliberately not mentioned about this to convict the accused rather than to acquit him and also in the narration of the fact that the accused issued five cheques of Rs.1,00,000/- each towards purchase of diesel of Rs.34,53,824.10ps is absolutely wrong on the face of the complaint which has been omitted to mention in the impugned judgment and as well as trial court simply narrated various decision cited by the applicant but has failed to apply the principles applying to each of the decisions quoted to the facts of this case and also on the ground that trial court failed to take into consideration that the accused at the very inception of issue of notice to cause a reply as per Ex.P.23 disputing the very liability of Rs.34,53,824.10ps and issuance of 35 cheques in all as alleged and trial court failed to take notice that the complainant has put forth liability of the said amount as on 6.11.1997 and 26.8.1999. There is a gap of on year four months and on the fact of statement of account produced at Ex.P.50 to Ex.P.53, the trial court has failed to notice that there cannot be same liability at two different dates with a gap of one year four months and ought to have doubted the very genuinity of complaint as put forth and further ought to have dismissed the complaint and acquit the accused on such variation being disclosed before the court 6 Crl.A. No.503/2008 and therefore ought to have held that the burden of proof to prove the alleged offence committed beyond reasonable doubt was on the complainant and the complainant failed to discharge the said burden of proof throughout the proceedings.
It is also contended on the ground that the complainant was neither able to substantiate that the accused was due Rs.34,53,824/- either on 6.11.1997 or on 26.8.1999 by producing his books of accounts, balance sheet, income tax report, audit book to construe that there was any legally enforceable debt and also failed to take into consideration the principles laid down in ILR 2007 Kar 2709 in respect of the presumption under Section 139 of the Act need not be rebutted only by leading Defence Evidence and the said Presumption can be rebutted even on the faces of fact elicited in cross-examination of the complainant and this has been done in the case and the trial court ought to have acquitted the accused and also on the ground that the trial court failed to take into consideration the principles laid down under the N.I. Act that the cheques should have been presented within the stipulated time and admitting the cheques were taken on 6.11.1997 and five cheques in question have been presented to the bank for encashment and the five cheques are dated 25.3.00, 25.4.00, 25.5.00, 25.6.00, 25.7.00 i.e., after lapse of three years from the date of its issuance and presented in September 2000 by filling up the date and contents without the knowledge of the accused and without the notice of the 7 Crl.A. No.503/2008 same to the accused and also on the ground that trial court failed to consider that during the pendency of the complaint, the complainant produce statement of account at Ex.P.3 reflecting certain transactions and after about two to three years of filing the complaint, the complainant produced certain other bills at Ex.P.24 to Ex.P.49 which had no resemblance to each other in order to fill up the lacuna in the complaint knowing fully well that the complaint is false. The trial court has failed to notice that even among the bills and statement produced the accused was able to point out in the course of cross examination of PW-1 that several bills referred to therein have been paid but not accounted for as reflected in Ex.P.50 to Ex.P.53 and therefore the very statement of account produced was false to the knowledge of the accused. Besides the disputed bills does not bear the signature of the accused and accused has denied to have had transactions pertaining to such bills. The trial court has failed to notice that the complainant was unable to substantiate that on the date of issuance of cheuqes there was an legal existing debt to the tune of Rs.34,00,000/- to from the basis of complaint for bouncing the cheques.
The trial court has failed to take into consideration that complainant in the course of evidence was unable to say that in respect of what transaction cheques in question were precisely issued and also failed to notice that the narration of facts in the course of proceedings clearly reveals differences and dissentions. During the course of commercial 8 Crl.A. No.503/2008 transactions there has been obviously and apparently no intention to cheat on the side of accused and this was a manifest case of Civil in nature and has been dragged to assert pressure on the accused for setting out the standard dispute by playing fraud with him and presented the last five cheques after about two years deliberately without notice of the same to the accused to snatch away the business of the accused and the trial court also failed to notice that the complainant after collecting the cheques by extortion and undue influence did not present all 35 cheques to the bank to start with from 25.3.98 since the accused had brought to the notice of the complainant that accused would not be found due Rs.34,00,000/- and odd and proper account being taken between the two and reconciled the various disputes and accordingly the complainant acted for a continuous period of two years and did not present the cheque to the bank and therefore, the accused did not think fit to take any action against the complainant for collection of cheque by virtue of course of conduct between the complainant and the accused and the cheques issued were not intended to be acted upon.
It is also contended on the ground that trial court is in serious error in having failed to discuss various discrepancies pointed out by the accused during the course of cross- examination of PW-1 and also various admissions with reference to Ex.P.3 and Ex.P.50 to Ex.P.53 wherein accused pointed out various transactions reflected in Ex.P.3 have been already paid but reflected as due, therefore the bills later 9 Crl.A. No.503/2008 produced by the complainant at Ex.P.24 to 49 many of the bills have been paid but reflected to be due by complainant in the statement of account at Ex.P.52 to Ex.P.53 and pointed out other various discrepancies in the accounts which have been admitted by PW-1 the sum total discrepancies reflected at Rs.27,37,177.75ps (para No.16 of this appeal) and also trial court failed to take into consideration of the six receipts at Ex.D.209 to Ex.D.216 totally Rs.20, 20,785/- are not reflected in Ex.P.50 to Ex.P.53. Added to it a sum of Rs.10,00,000/- only is added towards commission, the sum total discrepancies works out to Rs.75,08,966.14ps and whereas the claim put forth by the complainant in his complaint is Rs.34,53,824.10ps and if the above discrepancies is taken into account the complainant will be liable to pay to accused Rs.40,45,942.04ps and trial court has failed to consider all these facts and also not discussed various discrepancies pointed out by accused and also not looked into Exhibits/documentary evidence produced by the accused and admitted by the complainant and also trial court failed to consider this important aspect that there was no legally enforceable debt or payable to complainant.
Further on the ground that trial court has erred taking into consideration of the view taken in 2007 (1) DCR page 541 in its true and proper prospective with reference to the observation made by the trial court at para No.8 of the impugned judgment that 10 Crl.A. No.503/2008 "......... The accused company has not produced any contra material to show that the Pw-1 is not the authorized representative of the complainant company. Therefore, in my opinion, mere non-examination of the Directors who have signed Ex.P.2 and non-production of Memorandum of Association and Articles of Association of the complainant company reflecting the names of the Directors and their power is not fatal to the complainant case".
15. The Trial Court is in serious error in having observed at para no.(7) of Judgment:-
The Accused Company has not produced any contra material to show that the PW-1. is not the authorized representative of the Complainant Company. Therefore, in my opinion, mere non-examination of the Directors who have signed Ex.P.2 and non-
production of Memorandum of Association and Articles of Association of the Complainant Company reflecting 11 Crl.A. No.503/2008 the names of the Directors and their power is not fatal to the complainant.
The Trial Court has erred in taking into consideration the Decision reported in 2007(1) DCR 541 in its true and proper perspective. The Burden is on the Complainant to prove the Authorization of PW-1 and not on the Accused. The Decision in 2007(1) DCR 541 is very clear that the complainant must prove the Authorization either by examining the Director or Managing Director who signed the authorized the persons.
In the present case though Ex.P.2 Board Resolution is produced, the Board Resolution does not reflect to have been registered with the Registrar of Companies as required by Section 192 of the Indian Companies Act 1956.
The complainant has not produced Memorandum and Articles of Association reflecting the names of Directors. The Directors referred to in the Board Resolution dt.5.9.2000 who have signed and authorized the Accountant to file the Complainant are 12 Crl.A. No.503/2008 not examined. (2007(1) DCR 541). The very Authorization is not proved by complainant. The Trial Court is in serious error in having observed that mere non-examination of Directors and non-produced of Memorandum and Articles of Association is not fatal to the complainant case. As per Decision reported in 2007(1) DCR 541 if the Authorization is not proved, the complaint is liable to be dismissed and therefore the trial court has erred in giving this Finding.
In the present case though Ex.P.2 board resolution is produced which does not reflect to have been registered with the Registrar of Companies as required under Section 192 of Indian Companies Act 1956 and complainant has not produced memorandum and articles of association reflecting the names of directors referred in Board of Resolution dt.5.9.2000 who have signed and authorized the accountant to file the complaint are not examined and also made reference to the view taken in 2007 (1) DCR page 541 and also on the ground that trial court is in serious error having observed at para No.9, 10, 12 to 14 of the impugned judgment with reference to oral evidence of PW-1 and certain material document referred at 'P' series which are available on record as per the contentions taken at para No.16 to 25 of the 13 Crl.A. No.503/2008 appeal memo that as there is serious error in having observed by the trial court that the question of certain future liabilities does not arise as per the view taken in ILR 2006 Kar page 3579 is not applicable. Therefore, under these circumstances it is contended that trial court is in error while coming to the conclusion that the complainant company has established that the accused has committed offence punishable under Section 138 of N.I. Act. Therefore the impugned judgment is erroneous both under the law and in facts and is liable to be set aside. Hence, under these circumstances it is prayed to allow this appeal and acquit the accused by setting aside the impugned judgment of the conviction of the appellant under this appeal.
7. The learned counsel for the appellant during the course of his arguments has relied on the following case laws;
1. AIR 2014 SC 3073
2. 2012(5) SCC 561
3. 2014(12) SCC 539
4. AIR 2006 SC 3366
5. AIR 2010 SC 1898
6. ILR 2007 Kar 2709
7. 2009(2) SCC 513
8. ILR 2008 Kar 3635
9. 2011(6) KLJ 476
10. AIR 2014 SC 3078
11. 2012 (5) SCC 561
12. 2010(3) AIR Kar 207 14 Crl.A. No.503/2008
8. Under these circumstances it is prayed to allow the appeal by setting aside the judgment of conviction and sentence passed by the learned XV ACMM, Bangalore in C.C. No. 32037/2001 dtd: 30.5.2008.
9. In response to the notice, the respondent appeared through his counsel and submitted arguments that the judgment passed by the Court below is just and proper, it is based on sound principles of law and evidence, as such interference by this Court is not warranted and therefore it is prayed to dismiss the appeal.
10. LCR called for.
11. Inspite of sufficient opportunity given to the appellant and his counsel did not address arguments and also appellant has not come forward to comply the direction given by this court as per the order dt.27.3.2013 to deposit the fine amount before the 15th A.C.M.M., Court, Bangalore.
12. The arguments of the learned respondents counsel heard. Perused the materials placed on record.
13. The following points arise for my consideration.
1. Whether the judgment of conviction under this appeal passed by the court below is erroneous, illegal and suffers 15 Crl.A. No.503/2008 from any infirmity and thereby interference by this court is required?
2. What order?
14. My findings on the above points are as under:
Point No.1 : In the Negative, Point No.2 : As per the final order for the following:
REASONS
15. Point No.1:- It is the case of the Respondent/complainant that the 2nd accused being the director of the 1st accused company had purchased the diesel generating sets from the complainant company for a sum of Rs.34,53,824.10 ps towards discharge of the said liability had issued five cheques in favour of the complainant for a sum of Rs.1,00,000/- each dt.25.3.00, 25.4.00, 25.5.00, 25.6.00 and 25.7.00 drawn on Bank of India, J.C. Road, Branch, Bangalore infavour of complainant and when the said cheques were presented by the complainant for encashment the same were returned dishonour with an endorsement "Payment stopped by the drawer". Thereafter the complainant got issued demand notice dt.14.9.00 to the accused which was served on the accused, but the accused failed to pay the cheque amount and also failed to give reply to the said demand notice. Hence, under these 16 Crl.A. No.503/2008 circumstances complainant constrained to file complaint before the jurisdictional Magistrate Court.
16. On perusal of the entire evidence of PW-1 Sri.K.Madhusudan S/o.K.V.Krishnaiaha has reiterated all material allegations made in complaint by filing his affidavit in lieu of his examination-in-chief and got marked fifty three documents at Ex.P.1 to Ex.P.53 in support of his case i.e., Ex.P.1-Complaint, Ex.P.2-Board Resolution, Ex.P.3- Statement of account extract, Ex.P.4 to 8 -Cheques, Ex.P.9 and 10 - Bank endorsement, Ex.P.11 and 12 - Debit Slips, Ex.P.13 and 14 - Postal Receipts, Ex.P.15 and 16 - Acknowledgements, Ex.P.17 and 18 - Postal Acknowledgements, Ex.P.19 and 20 - Letters, Ex.P.21 - Office copy of the legal notice, Ex.P.22 - Letter of complainant, Ex.P.23 - Reply of accused No.2, Ex.P.24 to 49
- Sales Invoices and Delivery Notes, Ex.P.50 to 53 - Ledger Extract.
17. As could be seen from the entire version of PW-1 elicited by the learned counsel for the accused in the light of the suggestions made by the counsel for the accused it reveals that accused No.2 is the director of accused No.1 company and they are the dealers of the complainant company. It is further contended that accused used to purchase diesel generating sets from the complainant as the complainant company are the manufactures of diesel generating sets and accused No.2 is responsible for day today 17 Crl.A. No.503/2008 business of the accused No.1 company. Accused No.2 was personally dealing with the respondent/complainant in the capacity of director of accused No.1 company. Accused No.2 used to sign cheques of accused No.1 company. Accused company was due to pay a sum of Rs.34,53,824.10ps for having purchased diesel generating sets from the complainant and towards discharge of the said liability the accused/appellant had issued in all 35 cheques and out of the said 35 cheques, 33 cheques were issued for Rs.1,00,000/- each and the other two cheques were issued for Rs.50,000/- each. Five cheques issued for Rs.1,00,000/- each are pertaining to this case. When the said five cheques were presented for encashment, the same were returned dishonoured for the reason "Payment Stopped by the Drawer". It is further that contended that inspite of service of legal notice to the accused on 14.9.00 which was served on 15.9.2000, the accused did not reply nor paid the amount.
18. It is also elicited during the cross-examination of PW-1 that PW-1 working in complainant company since 1996 and accused is having transaction with the complainant company since 1994 and by that time PW-1 had not yet joined for his service. PW-1 admitted his signature on the document at Ex.P.50 to 53 but invoices are concerned those contain the signature of Branch Manager and he admitted that these invoices do not contain his signatures. It is also elicited that day today transactions is maintained in account book and its contents are maintained through the 18 Crl.A. No.503/2008 computers. He identified Ex.P.50 to 53 ends with the year transaction 31.3.99. It is also elicited that what was the outstanding balance payable by the accused as on 26.8.1999 is revealed from the contents of Ex.P.53 and as per Ex.P.53 outstanding balance is Rs.44,53,824.94 ps and in this regard all bills pertains to the accused produced at Ex.P.3 and Ex.P.53. It is also elicited that in respect of contents of Ex.P.3 are concerned by confronting the same as to whether this document relates to the transaction and in this regard he admitted that instead of writing opening balance in Ex.P.3, same bill has been mentioned. It is also elicited by confronting document in respect of complainant company to Tirumala Nursing Home which is marked at Ex.D.1 and one Indumathi who signed on the document at Ex.D.2 which is confronted to him, working in accounts section remitted bill in respect of Ex.D.1 or not is to be ascertained. It is also admitted in his further cross-examination dt.21.2.2006 ¤r 2 gÀ°èAiÀÄ ©¯ï ºÀtªÀ£ÀÄß ¥ÁªÀw¸À¯ÁVzÉ. FUÀ £ÉÆÃrzÀ ©¯ï£À°èAiÀÄ ºÀtªÀ£ÀÄß DgÉÆæ ¸ÀAzsÁAiÀÄ ªÀiÁrgÀÄvÁÛgÉ. CªÀÅUÀ¼À£ÀÄß ¤r 3 ªÀÄvÀÄÛ 4 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. FUÀ £ÉÆÃrzÀ gÀ¹Ãw ¤r4 ©°èUÉ ¸ÀA§A¢ü¹zÀÄÝ JAzÀgÉ ¸Àj CzÀ£ÀÄß ¤r5 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. - - - - - - ¤.r.1 jAzÀ ¤.r.6gÀ°è ºÉýgÀĪÀ ¸ÀAzÁAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀÄÝ. EgÀÄvÀÛzÉ. ¤¦ 32PÉÌ ¸ÀA§A¢ü¹zÀ 39322 gÀÆ ºÀt FUÀ £ÉÆÃrzÀ gÀ¹Ã¢UÉ ¸ÀA§A¢ü¹zÀÄÝ, JAzÀgÉ, ¸Àj DzÀgÉ CzÀgÀ°è ©¯ï £ÀA§gÀ£ÀÄß £ÀAvÀgÀ ¨gÉAiÀįÁVzÉ CzÀ£ÀÄß ¤r 7 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ.
19 Crl.A. No.503/200819. PW-1 also admitted in his further cross- examination dt.22.4.2006 that the amount relates to first entry as shown in Ex.P.3 has been received but its bill number is not shown therein and on confrontation of one document which containing invoice number and particulars of the date and as well as confronted letter dt.19.7.97 to PW- 1 with regard to this letter it is elicited that he cannot say as to whether original of this letter is available or not. But on seeing the said document he identified the signature in the said document belongs to one Indumathi working in his office which is marked as Ex.D.8. He also admitted from 7th line that " ¤¦ 42gÀ°è ºÉýgÀĪÀ E£ïªÁ¬Ä¸ï £ÀA§gï ªÀÄvÀÄÛ vÁjÃRÄ ºÁUÀÆ ¤r.8gÀ°è ºÉýgÀĪÀ E£ïªÁ¬Ä¸ï £ÀA§gï ªÀÄvÀÄÛ vÁjÃRÄ MAzÉà DVgÀÄvÀÛzÉ CAzÀgÉ, ¤r.8gÀ°è £ÀAvÀgÀ ¸ÉÃj¸À¯ÁVzÉ. FUÀ £ÉÆÃrzÀ ¥ÀvÀæ DgÉÆæAiÀÄÄ £ÀªÀÄä PÀA¥À¤UÉ §gÉ¢zÀÄÝ JAzÀgÉ, ¸Àj. CzÀ£ÀÄß ¤r.9 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¤¦.46gÀ°ègÀĪÀ ©¯ï £ÀA§gï vÁjÃRÄ ºÁUÀÆ ¤r.9gÀ°è ©¯ï £ÀA§gï £ÀAvÀgÀ vÁjÃRÄ MAzÉà DVgÀÄvÀÛzÉ. ¸ÁQë ¸Àé ¥ÉæÃgÀuɬÄAzÀ ¤r.9gÀ°è vÁjÃRÄ ªÀÄvÀÄÛ ©¯ï £ÀA§gÀ£ÀÄß £ÀAvÀgÀ ¸ÉÃj¸À¯ÁVzÉ. FUÀ £ÉÆÃrzÀ zÁR¯É DgÉÆæ £ÀªÀÄä PÀA¥À¤UÉ §gÉzÀ ¥ÀvÀæªÁVgÀÄvÀÛzÉ CzÀ£ÀÄß ¤r.1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. FUÀ £ÉÆÃrzÀ zÁR¯ÉAiÀÄ°è ¥ÀgïZÉøï DqÀgï ¤r.10gÀ°è ºÉýgÀĪÀ ¥ÀgïZÉøï DqÀgï MAzÉà CVgÀÄvÀÛzÉ. CzÀ£ÀÄß ¤.r.11 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. FUÀ £ÉÆÃrzÀ zÁR¯É DgÉÆæ £ÀªÀÄä PÀA¥À¤UÉ §gÉzÀ ¥ÀvÀæ JAzÀgÉ, ¸Àj. CzÀ£ÀÄß ¤r.12 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. DzÀgÉ, CzÀgÀ°è £ÀªÀÄä PÀZÉÃjAiÀÄ AiÀiÁgÀÆ ¸À» ªÀiÁrzÀªÀgÀÄ JAzÀÄ ºÉüÀ®Ä §gÀĪÀÅ¢®è. M§â CAdÄ C£ÀÄߪÀªÀgÀÄ £ÀªÀÄä PÀZÉÃjAiÀÄ°è PÉ®¸À ªÀiÁqÀÄvÁÛgÉ JAzÀgÉ, ¸Àj. CªÀgÀ ¸À»AiÀÄ ¥ÀjZÀAiÀÄ £À£ÀUÉ E®è. ¤r.12gÀ°ègÀĪÀÅzÀÄ ¸ÀzÀj CAdÄ C£ÀÄߪÀªÀgÀ ¸À» JAzÀgÉ, £À£ÀUÉ UÉÆwÛ®è. ¤¦.34gÀ°ègÀĪÀ ©¯ï £ÀA§gï, vÁjÃRÄ ªÀÄvÀÄÛ ¤r.12gÀ°ègÀĪÀ ©¯ï £ÀA§gï, vÁjÃRÄ MAzÉà DVgÀÄvÀÛzÉ. DgÉÆæAiÀÄÄ £ÀªÀÄä PÀA¥À¤UÉ §gÉzÀ ¥ÀvÀæ ªÀÄvÀÄÛ gÀ¹Ã¢UÀ¼À£ÀÄß ¤r.13 jAzÀ ¤r.175 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ªÉÄÃ¯É ºÉýzÀ J®è ¤±Á£ÉUÀ¼ÀÄ £ÀªÀÄä ªÀÄvÀÄÛ DgÉÆæAiÀÄ PÀA¥À¤ £ÀqÀÄ«£À ªÀåªÀºÁgÀªÀ£ÀÄß vÉÆÃj¸ÀÄvÀÛzÉ JAzÀgÉ ¸Àj.
20 Crl.A. No.503/200820. PW-1 also admitted that as per document at Ex.D.3 to Ex.D.175 complainant company made transactions with the accused but he denied the suggestion that generator supplied to the accused company returned back as it was low quality and delivery challan in respect of the same is got marked as Ex.D.176. PW-1 has no denied the suggestion that as per the said delivery note in respect of the said generator marked as Ex.D.177 and in this regard he further admitted that with regard to return of the generator complainant has to pay Rs.75,744/- to the accused but he stated that he cannot say as to whether the said amount was given on credit to the account of the case or not. He also admitted two invoices at Ex.D.178 and Ex.D.179 and letter dt.13.11.1996 at Ex.D.180 and also admitted three forms AR and six forms of AR4 which are marked as Ex.D.181 to Ex.D.186. It is also clear from his further version elicited therein as to whether amount of Rs.58,400/- towards excise duty excess debt was given to the account of the accused is concerned is to be verified. He also admitted that accused having office at Combater and also he admitted that letter issued by the complainant to the accused dt.15.2.96 marked as Ex.D.187 and the transaction made by the accused for that letter is marked at Ex.D.188. He also admitted that if any person required to place order in respect of the said article has to pay 10% amount of its cost in advance. He also admitted the cost of the generator shown in the document at Ex.D.187 and 188 of Rs.3,40,000/- where paid as advance by its dealer. He also admitted the accused company had not 21 Crl.A. No.503/2008 supplied its generator set to its customer. It is also elicited that the said advance amount was credited to the account of the accused or not is to be confirmed (as per the document produced at Ex.D.51 to 53). He also admitted the receipt in respect of the said amount was issued by Indumathi of his office and he also admitted that it is his responsibility to give credit the amount of Rs.3,40,000/- to the account of the accused.
21. So far as his version elicited in his further cross- examination dt.18.9.2006 he admitted that complainant company cannot recover excise duty in respect of said generator and he also admitted that there was no credit in respect of advance amount of Rs.3,40,000/- in Ex.P.51 to Ex.P.53. PW-1 also admitted that he has no objection to consider the receipt dated 2.7.2006 issued by Indumathi which was referred earlier by him in his evidence for considering the said document as Ex.D.189 and the said receipt is dt.21.7.97 for the Rs.40,540/-. Further PW-1 admitted in his cross-examination from 13th line that "
¤r.190gÀ°è ºÉýzÀ ºÀtªÀ£ÀÄß DgÉÆæ £ÀªÀÄUÉ ¥ÁªÀw¹zÀÄÝ ZÉPï ªÀÄÄSÁAvÀgÀ FUÀ £ÉÆÃrzÀ ¨ÁåAPï D¥sï EArAiÀiÁzÀ ¨ÁåAPï ¸ÉÖÃmïªÉÄAmï£À°è ¸ÀzÀj 25,000 gÀÆ £ÀªÀÄä PÀA¥À¤AiÀÄ SÁvÉUÉ PÉærmï DzÀ §UÉÎ £ÀªÀÄÆ¢zÉ JAzÀgÉ ¸Àj. ¸ÀzÀj ¨ÁåAPï ¸ÉÖÃmïªÉÄAmï£ÀÄß ¤r-191 ¸ÀA§A¢¹zÀ JAnæAiÀÄ£ÀÄß ¤r-191J JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ (¤r-191 3 ºÁ¼ÉUÀ¼À°èzÉ). ¤¦-51 jAzÀ 53 gÀ°è ªÉÄÃ¯É ºÉýzÀ 25,000 gÀÆ dªÀiÁ ªÀiÁqÀ°®è JAzÀgÉ ¸Àj . FUÀ £ÉÆÃrzÀ ¯Élgï ºÉqïUÀ¼ÀÄ DgÉÆæ ªÀÄvÀÄÛ £ÀªÀÄä PÀA¥À¤AiÀÄ £ÀqÀÄªÉ ¥ÀqÉzÀ ¥ÀvÀæ ªÀåªÀºÁgÀPÉÌ ¸ÀA§A¢ü¹zÀÄÝ JAzÀgÉ ¸Àj."22 Crl.A. No.503/2008
22. It is also elicited by the learned counsel for the accused in his further cross-examination dt.9.2.2007 by confronting documents to PW-1 pertaining to short supply of preventive maintenance skit which are marked Ex.D.192 to Ex.D.208. PW-1 also admitted suggestion that there is no entry pertaining to Ex.D.199 to Ex.D.208 in Ex.P.51 to Ex.P.53 namely Rs.80,370.30ps and Rs.1,16,367.40ps. Further he admitted that they have not produced any statements of accounts pertaining to the accused from the inception namely 2.9.93, but denied suggestion that his company has cheated the accused deliberately by not crediting the entries noted so far and further he has not answered in respect of suggestion as to whether Rs.36,255.14ps pertaining to the control system is wrongly debited the accused account prior to 1996. It is also admitted by PW-1 that his company dealing with two types of transaction one is directly supplying the generator to the accused and another is accused used to collect orders from his customers and pass on such orders to supply the customers directly and also that the price of the generators where fixed between the company and the accused. PW-1 also admitted that accused collect orders at his price keeping his profit margin and also admitted that while remitting the balance he was keeping excise duty difference of price.
23. He also admitted that he has debited the accounts of the accused of the bill amount given to his customers and also further admitted that the difference of amount of price 23 Crl.A. No.503/2008 and in excise duty pertaining to the supply made to the accused persons is not in credit in Ex.P.51 to Ex.P.53. He also admitted that he is not aware whether they have given prepared statement showing total difference of price and difference of excise duty and also admitted that he has no idea whether the complainant company and accused struck the balance between the two and is not aware whether his company has taken the confirmation letter from the accused regarding Rs.10,00,000/-.
24. It is also clear from his version elicited in his further cross-examination dt.29.5.2007 that wherein he clearly admitted that day today transactions of the accused in respect of the bills where remitted to the complainants company and he has not denied suggestion as to where was a letter in respect of conspirator pertains to strucking of balance between complainant company and accused and also not denied the suggestion as to whether accused had issued any post dated cheques on 12.9.1999 to the complainant. It is also elicited that accused had made transaction with complainant after 31.3.1999 however admitted that no any statement pertaining to the accused of the accused have been produced and also admitted that the statement of account after 31.3.1996 is not produced, but bills pertains to balance to be paid have been produced in respect of Rs.44,00,000/- as shown Ex.P.3. However he denied the suggestion that those bills are no way connected to the said amount as shown in Ex.P.3 and as well as there is no nexus 24 Crl.A. No.503/2008 between bills pertains to Ex.P.3 and also Ex.P.24 to Ex.P.48. PW-1 also admitted in his further cross-examination from 14th line that "¤¦24 jAzÀ 48PÉÌ AiÀiÁªÀÅzÉà ¸ÀA§AzÀ«®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦ 24 jAzÀ ¤¦48 F ¦ügÁå¢ zÁR°¸ÀĪÀ ªÉÆzÀ°£À 3 ªÀµÀð«ÆÃjzÀÄÝ ¸Àj. ¤¦ 24jAzÀ 48gÀ ªÉÄÃ®É DgÉÆæ ¸À» ªÀiÁr®è JAzÀgÉ ¸Àj. DgÉÆæAiÀÄÄ vÀ£Àß ¥Ánà ¸ÀªÁ°£À°è M¦àPÉÆAqÀ ¤¦ 36, 38, 40, 42 ©¯ïìUÀ¼À°è ºÉýzÀ ¸ÀévÀÄÛUÀ¼À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ AiÀiÁªÀÅzÉà ©®ÄèUÀ½UÉ ¸ÀA§A¢ü¹ ¸ÀévÀÄÛUÀ¼À£ÀÄß CªÀjUÉ ¥ÀÇgÉʹzÉÝà E®è JAzÀgÉ ¸ÀjAiÀÄ®è. ºÁUÉAiÉÄà ¤¦.3gÀ°è ºÉýzÀ 11 ©®ÄèUÀ¼À°è ºÉýzÀ ¸ÀévÀÛ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ G½zÀ ©®ÄèUÀ¼° À è ºÉýzÀ ¸ÀévÀÛ£ÀÄß DgÉÆæ ¥ÀÇgÉʹ¢Ý®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¥Àæ¸ÀÄÛvÀ ZÀÉPïUÀ¼À°è ºÉýzÀ ºÀtPÉÌ ¸ÀA§A¢ü¹ ©¯ïUÀ¼À£ÀÄß ¤ÃqÀ¯ÁVzÉ JAzÀÄ ¤RgÀªÁV ºÉüÀ®Ä §gÀĪÀÅ¢®è. 35 ¥ÉÇøïÖ qÉÃmÉqï ZÉPÀÄÌUÀ¼À£ÀÄß DgÉÆæAiÀÄÄ AiÀiÁªÁUÀ ¤ÃrzÀgÀÄ JAzÀÄ ºÉüÀ®Ä £É£À¥ÀÅ §gÀĪÀÅ¢®è."
25. It is also elicited wherein PW-1 clearly admitted that out of 35 post dated cheques, questioned five cheques were only presented to the bank for its encashment and remaining 30 cheques were not presented to the bank and they are with their possession. PW-1 also admitted that he cannot say as to whether those 35 cheques were given prior or after to Ex.P.22 and there is a inward and outward register maintained in his company and he do not know as to whether there is a specific mention about dispatch of Ex.P.22 in the register. He also admitted that he was not present at the time of preparing Ex.P.22. PW-1 has not denied suggestion that endorsement of the accused on Ex.P.2 was obtained as it was time barred but he stated that he do not know the same. He denied that purposely no any documents have been produced before the court as per the quantum of the amount shown in Ex.P.22. He also admitted that he 25 Crl.A. No.503/2008 cannot say about the handwritings in Ex.P.4 to Ex.P.8 except signature on these documents. It also reveals from the remaining suggestions made in respect of defense of the accused that writings on Ex.P.4 to Ex.P.8 are not the handwritings of the accused and also denied that the writings made on Ex.P.4 to Ex.P.8 are written in similar style. Further he has not denied suggestion as to the contents of Ex.P.4 to Ex.P.8 made by staff of the complainant company. But he stated that he do not know the same. He also denied that there was no reason for the accused to issue Ex.P.22 on 26.8.1999 and 31.3.1999 and in order to blackmail the accused, illegally cheques were obtained from the accused and by mis-utilizing the same false complaint has been filed against the accused.
26. It is also pertinent to note that on 12.9.2007 PW-1 was recalled and subjected for further cross-examination by the counsel for the accused wherein PW-1 has clearly admitted that " ¤r 130 jAzÀ ¤r 133 ºÁUÀÆ ¤r 140, 150 ªÀÄvÀÄÛ 151gÀ°è DgÉÆæAiÀÄÄ ZÉPï ªÀÄÄSÁAvÀgÀ ¥ÁªÀw¹zÀ ºÀªÀ£ÀÄß CAzÀgÉ ¤¦ 50 jAzÀ 53 gÀ°è gÀ¹ÃwAiÀÄ°è ºÉýzÀ ºÀt £ÀªÀÄÆ¢¸À°®è JAzÀgÉ ¸Àj. C®èzÉ FUÀ vÉÆÃj¹zÀ gÀ¤ÃwUÀ¼À ¥ÀæPÁgÀ DgÉÆæAiÀÄÄ ¸ÀAzsÁAiÀÄ ªÀiÁrzÀ ºÀtªÀ£ÀÄß ¸ÀºÀ ¤¦ 50 jAzÀ 53gÀ°è £ÀªÀÄÆ¢¸À°®è. gÀ¤ÃwUÀ¼À£ÀÄß ¤r 209 jAzÀ 214 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."
27. It is also clear from his version elicited there in that PW-1 has not denied the suggestion as to accused paid Rs.5,000/- through cheque on 5.8.2000 but he stated that he would say on seeing the same, but he denied the 26 Crl.A. No.503/2008 suggestion that purposely statement of account is not produced in respect of amount paid by the accused after 1990 to 1999. It is also elicited in his further cross- examination dated 3.11.2007 wherein he admitted that accused paid Rs.2,00,000/- through cheque as per Ex.D.15 and he also admitted that earlier payment by the accused of Rs.5,000/- on 5.8.2000 as per Ex.D.216. PW-1 also admitted he cannot say as to which were the cheques out of the total 35 cheques issued by the accused in respect of which bill. It is also elicited in his further cross-examination that accused transacted with the complainant company till the year 2000. but remaining suggestions with regard to defense of the accused as to total denial of the case of the complainant are concerned have been categorically denied by PW-1 in toto.
28. At this stage it is necessary to consider the view taken by the Hon'ble Supreme Court in a case law reported in AIR 2003 page 182 as referred above supra between C.Antony V/s. K.G.Raghavan Nair wherein it is held as under;
Criminal P.C.(2 of 1974), S.378 -
Appeal against acquittal - power of appellant Court - It has full power to re-appreciate evidence - But without coming to definite conclusion that findings given by trial court are perverse - It cannot substitute the findings of trial court by taking a totally different perspective -
Complaint of dishonour of cheque -
Dismissed by trial court for want of proof of advancement of money by 27 Crl.A. No.503/2008 complainant - High Court without holding that finding of trial court is perverse and on totally different perspective converting acquittal into conviction - order unsustainable.
29. On going through the entire evidence of PW-1 in the light of documents at Ex.P.1 to Ex.P.53, out of them Ex.P.4 to Ex.P.8 are the five cheques for a sum of Rs.1,00,000/- each alleged to have been issued by the accused to the complainant and on its presentation through the banker of the complainant company were dishonoured for the reasons payment stopped by drawer as per the bank endorsements at Ex.P.9 and 10 and bank advised letter at Ex.P.11 and 12. It is pertinent to note that it is undisputed fact in the light of above defense taken by the accused before the trial court to the reply given to the legal notice as per Ex.P.23 is taken into consideration, it is crystal clear that accused disputed that the alleged cheques were issued towards legally recoverable debt as claimed in legal notice at Ex.P.21 by the complainant and as well as the claim of the complainant is also disputed on the ground that it is time barred even by admitting the fact that accused had a transaction with complainant from 1994 and it was a simple transaction of supply of goods by the complainant to the accused on credit or to its customers at the instance of the accused and also it is specific contention or defense of the accused set up in Ex.P.23 itself that accused not only disputed his signature but also the writings on the cheques at Ex.P.4 to Ex.P.8 and those were obtained under the influence of coercion, fraud and extortion. Thirty five 28 Crl.A. No.503/2008 cheques were taken from the accused, under these circumstances accused denied his liability for alleged offence under Section1 38 of N.I. Act. It is also pertinent to note that in this case after recording 313 statement of the accused by the court below, wherein accused denied the case of the complainant in toto and he has not chosen to lead his defense evidence independently by stepping into witness box. But on going through the entire cross-examination of PW-1 made by the learned counsel for the accused from time to time which runs in length, accused has got marked as many as 216 documents in support of his defense marked as Ex.D.1 to Ex.D.216 and as well as it clearly reveals that accused exercise his option to probabalize his defense as observed in Rangappa v/s. Mohan case reported in AIR 2010 Supreme Court 1898. By cross-examining PW-1 with regard to the case of the complainant and above documentary evidence relied in this case by the complainant. Keeping in view of the above defense of the accused whether the complainant in this case able to probabalize his case in the light of presumption available to him under Section 138, 118 R/w. 139 of N.I. Act and on the contrary accused is able to raise his probabalize defence under the facts and as well as under the law as referred above supra.
30. With regard to the factual aspect in respect of this case are concerned, as per the view taken in Rangappa's case is concerned, it appears that the accused has exercised his option by relying on the version of PW-1 by cross-
29 Crl.A. No.503/2008examination in order to probabalize his defense, in this context if the version of PW-1 elicited during his cross- examination with regard to the disputed aspect of legally recoverable debt is concerned several admissions have been elicited by way of confrontation of the documents relied by the accused at Ex.D.2 to Ex.D.7 in respect of Ex.D.1 and as well as the amount shown in Ex.P.3 with regard to first entry is concerned amount paid by the accused but there is no specific mentioned has been made with regard to its bill number but he is not sure that as to whether the said document is available in his office. With regard to Ex.D.8 also which is related to Ex.P.12 invoice its number and date are one and the same and those were mentioned later on in Ex.D.8 so also similar admission is made in respect of Ex.D.9 with regard to Ex.P.46. So also in respect of Ex.D.12 he clearly admitted in respect of bill at Ex.P.34. Apart from this it is clear that with regard to alleged supply of diesel generator set by the complainant to the accused is concerned, its quality was in dispute and there is no dispute with regard to the aspect that delivery note was not issued by the complainant to the accused and therefore, for this reason PW-1 is not sure about correctness of the account as to whether credit of Rs.75,744/- was given by the complainant to the accused for his account and the relevant documents to that effect have been relied at Ex.D.178 to Ex.D.186 and as well as the version of PW-1 is not consistent and believable with regard to the aspect of the correctness of the account pertains to excess debt made in respect of the account of the 30 Crl.A. No.503/2008 accused for Rs.58,400/- as he stated that it is required to verify the same and the transaction in respect of the diesel generator set is also marked at Ex.D.188. It is also pertinent to note that with regard to the said transaction is concerned since PW-1 is not disputing that if any person wants to place the order, one has to pay 10% of the total cost of that particular item and in this context the document at Ex.D.187 and Ex.D.188, the cost of D.G. Set is shown as Rs.34,00,000/- and its advance amount Rs.3,40,000/- was paid by its dealer and he also admits that ultimately the customer of the accused company was not supplied with the said D.G. Set and apart from that it also reveals about the credibility of the evidence of PW-1 as to whether the said 10% of the amount of the DG set was given credit to the account of the accused or not so far as ExP.51 to Ex.P.53 are concerned which have been relied by PW-1 in this case and as well as PW-1 clearly admitted that it is his responsibility to give the said 10% advance amount to the credit of the accused.
31. It is also pertinent to note that with regard to the difference of opinion between complainant and accused with regard to charging of excise duty pertaining to the said DG Set is concerned PW-1 clearly admitted with reference to the document at Ex.P.51 to Ex.P.53 that such excise duty cannot be levied as said 10% of the advance amount was not given to the credit of the accused as per the receipt already issued by accountant in his office by name Indumathi produced at 31 Crl.A. No.503/2008 Ex.D.189. It is also pertinent to note that the amount of Rs.25,000/- paid by the accused as shown in Ex.D.190 is concerned is not shown in bank statement at Ex.D.191 (comprising in three sheets) and also that Rs.25,000/- was credited to the account of the complainant. However, the said amount is not shown in Ex.P.51 to Ex.P.53 and also it is clear that so far as the documents produced by the accused at Ex.D.192 to 208 are concerned pertaining to the supply of preventive maintenance kit there is no specific entry for Rs.80,371.30ps and also Rs.1,16,367.40ps in Ex.P.51 to Ex.P.53 and so also it is pertinent to note that by virtue of the clear admission on the part of PW-1 that the difference of the amount of price and also difference in excise duty pertaining to supply made to accused customer is also not credited in Ex.P.51 to Ex.P.53 and in this context the evidence of PW-1 as to he is not sure as to whether complainant prepared the statement showing the said difference and also that whether the balance between complainant company and accused was struck between them and so also PW-1 is not sure as to whether his company taken confirmation letter from accused regarding Rs.10,00,000/-.
32. It is also pertinent to note that as per the version of PW-1 who clearly admitted that accused was regular in payment to the complainant company in respect of its day today today's transactions and as well as he admitted that no statement of account produced before the court in respect of 32 Crl.A. No.503/2008 the period prior and after 31.3.1999 as well as he admitted that the documents produced at Ex.P.24 to 48 are concerned i.e., sale invoices and delivery notes are the documents in respect of the period of three years prior to filing of the complaint and also he clearly admitted that he cannot say as to whether bills in respect of present cheques were issued to the accused. It is also pertinent to note that so far as suggestion related to alleged issuance of 35 post dated cheques are concerned, evidence of PW-1 is not consistent and proper to believe as to when accused issued those cheques and as well as issuance of date of such cheque and the date of issuance of such last cheque and out of the said 35 post dated cheques only five cheques were presented for its encashment and the remaining 30 post dated cheques could not be presented and they are remained with the complainant. From this version it can be inferred that the evidence of PW-1 with regard to the alleged five cheques are concerned i.e., Ex.P.4 to Ex.P.8, in order to substantiate and prove that these cheques were issued by the accused for the enforcement of partial or whole debt of the accused within a stipulated time and in this context the material documents relied by PW-1 at Ex.P.24 to Ex.P.28 are concerned which probabalize the defense of the accused that the questioned five cheques at Ex.P.4 to Ex.P.8 are concerned reflecting to the period of limitation prior to filing of the complaint and in this context the evidence of PW-1 is not consistent and believable to hold that the debt for which the said five cheques were issued by the accused to the complainant were 33 Crl.A. No.503/2008 in the period of limitation prescribed by the law and also in this context the entire cross-examination done by the learned counsel for the accused particularly with regard to this aspect, Ex.P.22 is taken into consideration along with Ex.P.3 and Ex.P.50 to Ex.P.53 and also several admissions elicited during cross-examination of PW-1 in the light of document relied by the accused at Ex.D.2 to Ex.D.7, Ex.D.12 to Ex.D.175, Ex.D187, Ex.D.188, Ex.D.189, Ex.D.190, Ex.D.191(A) (which comprising in three sheets) are concerned, admission made by PW-1 with regard to these material documents which goes against the case of the complainant and on the contrary the above defense of the accused would probabalize the case of the accused. Apart from this so far as the document relied by the accused at Ex.D.130 to Ex.D.133 and also Ex.D.140, Ex.D.150 and Ex.D.151 are concerned PW-1 clearly admitted that the accused paid the amount to the complainant but the same is not mentioned in the receipts produced at Ex.P.50 to Ex.P.53 and those receipts got marked by the accused at Ex.D.209 to Ex.D.214 and the bank statement in this regard is produced at Ex.D.215. Apart from this as per Ex.P.15 PW-1 admitted that accused paid Rs.2,00,000/- through cheque, which he has referred in his earlier evidence dt.12.9.2007 for Rs.5,000/- accused paid on 5.8.2000 and its relevant receipt produced at Ex.D.216 is concerned is got marked during cross-examination of PW-1. Therefore, considering all these circumstance it clearly goes to show that the entire evidence of Pw-1 is not reliable and free from the doubtful 34 Crl.A. No.503/2008 circumstances in the light of certain material admissions as referred above supra and as well as having regard to the answers given by PW-1 not only with regard to correctness of the maintainability of the account between the complainant company and the company of the accused as referred above supra for which his evidence is not consistent and believable. It is also pertinent to note that several material documents relied by the accused in support of his defense in 'D' series produced at Ex.D7, D8, D9, D10 and D12 with reference to Ex.P.32, Ex.P.34, Ex.P.42, Ex.P.44 and Ex.P.46 in respect of the invoice covered under the transactions as far as Ex.P.24 to Ex.P.49 are concerned have been settled by the accused and as well as in the light of admission made by PW-1 with regard to several payments made by the accused to the complainants company are not reflected in the documents at Ex.P.50 to Ex.P.53 ledger extracts i.e., Ex.D129 to Ex.D.151 of Rs.2,75,477/-, Rs.2,79,972/-, Rs.3,50,743/-, Rs.4,28,819/-, Rs.5,03,417/- respectively and Ex.D.209 to Ex.D.216 of Rs.2,80,805/-, Rs.3,25,000/-, Rs.6,96,686/-, Rs.2,44,500/-, Rs.1,27,794/-, Rs.4,00,000/-, Rs.2,00,000/- and Rs.5,000/- respectively. Hence, considering these material documentary evidence relied by the accused it can be inferred that the account extract produced by the complainant at Ex.P.50 to Ex.P.53 is not proved and not reliable. It is further pertinent to note that if the document at Ex.P.50 to Ex.P.53 statements of account taken into consideration so far as the party ledger account for the period 1996, 1999, the total due reflects Rs.44,53,824/- and 35 Crl.A. No.503/2008 this fact is close elicited during the cross-examination of PW-1 dt.26.10.2005 as far as Ex.P.53 is concerned, in this context the evidence of PW-1 coupled with documentary evidence at Ex.P.4 to Ex.P.8 cheques and account extract Ex.P.3 and as well as invoices raised for the total value of Rs.45,04,329/- are taken into consideration along with the acknowledgment of debt dt.26.8.1999 produced at Ex.P.22 it reveals the outstanding is shown as Rs.34,53,824/- and thereby it can be inferred from the above circumstances, difference of Rs.10,00,000/- so far as the statements of account produced at Ex.P.50 to Ex.P.53 along with Ex.P.22 is concerned, with regard to this aspect the version of PW-1 elicited during his cross-examination by the counsel for the accused dt.24.6.2002 that 'by mutual agreement this difference was to be considered as commission payable to the accused'. If these circumstances are taken into consideration, the discrepancies with regard to the correctness Ex.P.50 to Ex.P.53 with the invoices produced at Ex.P.24 to Ex.P.49 are taken into consideration in the light of admissions made by PW-1 during his cross-examination with reference to the document at Ex.D.2 letter and Ex.D.6 receipt, Ex.D.3 letter and Ex.D.5 receipt, which are not reflected as far as invoices produced at Ex.P.26 to Ex.P.28 are concerned and so also bill dt.10.2.1997 for Rs.39,322/- produced at Ex.P.32 wherein the said due is shown from Deebee Power, in this context the document at Ex.D.7 letter dt.11.2.1997, PW-1 has admitted the receipt of the said amount and by virtue of the admission of PW-1 the said 36 Crl.A. No.503/2008 amount is not credited to the account of the accused in the statement of accounts at Ex.P.50 to Ex.P.53 and also Ex.P.42 and Ex.P.46 invoices are concerned the amounts shown in these two documents has been paid by the accused to the complainant as per Ex.D.8, Ex.D.9 and Ex.D.12 which are not at all reflected in Ex.P.50 to Ex.P.53. If all these circumstances are taken into consideration in the light of the view taken by the Hon'ble Supreme Court in Rangappa V/s Mohan reported in AIR 2010 SC page 1898 and other case laws relied by the learned counsel for appellant accused with regard to standard degree of proof under Section 139 of N.I. Act where in it is held as under;
Standard and degree of proof under Sec.139 is "Preponderance of Probabilities". If accused is able to raise probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. The accused need not lead evidence of his own but can rely on materials produced by the complainant.
ILR 2007 KAR 2709 in between M.Senguttuvan V/s. Mahadevaswamy Accused need not rebut presumption under /s.139 by leading defence evidence.
The presumption can be
rebutted by eliciting
admissions in the cross-
37 Crl.A. No.503/2008
examination of the
complainant.
2009(2) SCC 513 between Kumar Exports V/s. Sharma Carpets To disprove the presumption the accused should bring on record such facts and circumstances so that the court many believe that debt did not exist or that non-existence of debt was probable to prudent man.
Accused may also rely on surrounding circumstances (Circumstantial evidence). If such circumstances put forth by accused are compelling, the burden will shift again on the complainant and thereafter the presumption under Section 118 and S.199 of N.I. Act will not again come to the rescue of the complainant.
ILR 2008 KAR 3635 between K.Narayana Nayka V/s.
Sri M.Shivarama Shetty
To discharge the
presumption as to issuance
of cheque, accused need not
to do sin entirety, accused
can discharge on basis of
preponderance of
probabilities.
38 Crl.A. No.503/2008
2011(6) KLJ 476 between M.B.Rajasekhar V/s.
Savithramma
Accused can rebut
presumption either by direct
evidence or by
preponderance of
probabilities.
33. Having regard to the view taken in the above case laws relied by the learned counsel for the appellant it is crystal clear from the entire facts and circumstances of this case, undisputedly accused had not chosen to adduce his defence evidence independently by stepping into the witness box before the trial court, but he relied on several documentary evidence which were got marked during the cross-examination of PW-1 as Ex.D.1 to Ex.D.216 and also it is clear from the conduct of the accused that inorder to probabalize his defence, only the option excised by the accused is to elicit material circumstances during cross- examination of PW-1. When such being the situation the evidence of PW-1 in the light of above documentary evidence relied by the accused are taken into consideration along with material admissions elicited during his cross-examination by the accused not only with regard to reliability and correctness of alleged debt as per the ledger extract relied by PW-1 at Ex.P.3, Ex.50 to Ex.P.53 along with five cheques produced at Ex.P.4 to Ex.P.8 are concerned, which renders the evidence of PW-1 improbable to believe the case of the complainant as the evidence of PW-1 with regard to several doubtful circumstances not only in respect of alleged return 39 Crl.A. No.503/2008 of certain diesel generator sets by the accused to the complainant along with kits etc., and as well as several documentary evidence produced by accused which are got marked in D series as referred above supra, which are admitted by PW-1 therefore, it can be inferred that the evidence of PW-1 which suffers from doubtful circumstances and as well as the correctness of the accountability, alleged bouncing of the cheques at Ex.P.4 to Ex.P.8 as per Ex.P.9 to Ex.P.12 are concerned, which probabalize the above defense of the accused that those cheques were not issued by the accused to the complainant towards legally enforceable debt or liability. Therefore, under these circumstances if the entire version of PW-1 elicited by the learned counsel for the accused compelled with above material admissions and as well as admission of certain 'D' series documents with regard to payments made by the accused to the complainant company, the evidence of PW-1 with regard to the presumption of five cheques at Ex.P.4 to Ex.P.8 are concerned stands rebutted under Section 139 R/w. Section 118 of N.I. Act and therefore it is clear that the view taken in the above case laws relied by the learned counsel for the appellant in this case are aptly applicable to this case.
34. It is also pertinent to note that complainant filed complaint against the accused before the trial court that complainant company as described in the cause title of the private complaint under Section 200 of Cr.P.C., filed against the accused company M/s.DeeBee Power Systems Private 40 Crl.A. No.503/2008 Limited., with particulars of the address shown in the cause title of the complaint represented by its Director K.Balasubramanyam showing as accused No.1 and accused No.2 is K.Balasubramanya being the director of accused No.1 company as per the description shown in the cause title of the complaint. When such being the situation, the contention taken by the learned counsel for the appellant/accused with regard to the aspect that where the proceedings are initiated both against the company and Managing Director it cannot be continued only against Director in the absence of company, with regard to this aspect it is submitted by the learned counsel for the appellant accused that accused No.1 company was ordered to be windup vide order dt.20.12.2002 by the Hon'ble High Court of Karnataka Bangalore in CP No.106/2002 and the court below has referred to this order dt.29.8.2003 that further proceedings against accused No.1 company were stayed until leave to prosecute was obtained, no such order was obtained by the complaiannt. However, in the impugned order accused No.1 company and accused No.2direcor have been convicted and accused No.2 could not have been convicted when there was a prohibition/Emargo against accused No.1 company and in sipport of his argument he has relied on following two case laws'.
1. AIR 2014 SC 3078ntweem Ail Gupta V/s. Star India Pvt. Ltd., and Another.
(A). Negotiable Instruments Act, (27 of 1881), S. 138 -Dishonour of cheque-drawer of cheque alone falls within ambit of S.138, 41 Crl.A. No.503/2008 whether human being or a body corporate or even a fir (B). NIs Act (26 of 1881), S. 141, 138 - Offences by company -
Dishonour of cheuqe -
Proceedings initiated amount company and rector of company cannot be presented alone-
complaint against company already quashed - Order of Hon'ble High Court that proceedings against appellant Managing Director can be continued even in absence of company - liable to be set aside.
2. 2012 (5) SCC 561 Mandatory requirement that company must be impleaded as accused. Without company the director, as accused cannot alone by prosecuted.
35. By relying the above authorities learned counsel for appellant submitted that the conviction of the appellant/ accused No.1 and 2 under the above circumstances is not sustainable and the same is liable to be set aside unless and till Hon'ble High Court of Karnataka. Bangalore grants permitted at prosecute the accused No.1 company. If this aspect is taken into consideration along with the order dt.29.8.2003 passed by the court below by staying the further proceedings as against accused No.1 company until leave is obtained by the Hon'ble High Court of Karnataka to continue the prosecution while partly allowing the application filed by the accused under Section 446 of Indian 42 Crl.A. No.503/2008 Evidence Act R/w. Section 245 R/w. 258 of Cr.P.C., after passing the said order by the court below, it appears from the records of the court below that such permission was accorded, therefore considering these circumstances as per the view taken in the above case law relied by the learned counsel for the appellant, trial court passed impugned judgment under this appeal by convicting accused No.1 and 2 for the offence under Section 138 of N.I. Act as referred above supra is not sustainable under the law.
36. It is pertinent to note that according to complainant cheques in question had been issued before 6.11.1997 and in all there were 35 cheques, but the proceedings before the court below was initiated by the complainant only in respect of five cheques produced at Ex.P.4 to Ex.P.8 and with regard to the remaining 30 cheques there is no explanation forthcoming either in the complaint or in the evidence of complaint and the covering letter dt.6.11.1997 produced at annexure - C in the complaint has not been produced or not though its copy was handed over. Therefore, considering these circumstances also it can be inferred that the cheques in questions were not issued towards discharge of any debt or liability but it was towards security purpose since, the evidence of PW-1 and cheques at Ex.P.4 to 8 are taken into consideration along with Ex.P.3 statement of accounts extract and Ex.P.24 to 49 along with Ex.P.50 to 53 as far as admission of certain material facts by PW-1 during his cross- examination at Ex.D.1 to Ex.D.10, Ex.D.12 and also 43 Crl.A. No.503/2008 Ex.D.129 to Ex.D.216 relied by the accused it is clear that the evidence of PW-1 does not stands for reason to believe the case of the complainant as to above five cheques were issued by the accused towards discharge of debt either whole or in part as there is no proper accountability or corroboration of the evidence of PW-1 with regard to statement of account at Ex.P.3 and Ex.P.50 toEx.P.53 which are relied by the complainant so far as above material document relied by the accused in his 'D' series, therefore it is clear that the proving of existence of debt or liability is on the drawee of the cheque i.e., the complainant, as per the view taken in case law reported in 2010 (III) AIR, Kar 207 in Crl. A. No.407 of 2006 decided on 28.5.2010 between S.Timmappa V/s. L.S.Prakash wherein it is held as under;
(A) Negotiable Instruments Act, (26 of 1881), S.139 -
Existence of Debt - Not the subject matter of presumption under S.139 - Drawee of cheque has to prove existence of debt or liability.
37. Therefore, considering above circumstances this court is of considered view that the evidence of PW-1 and above materials available on record are taken into consideration along with several 'D' series of the documentary evidence relied by accused which were got marked during the cross-examination of PW-1 in order to probabalize the defence of the accused are taken into consideration it reveals that the 44 Crl.A. No.503/2008 trial court has not appreciated and not considered the evidential value of the above material admissions elicited during cross-examination of Pw-1 even though there are several rebuttal documentary evidence produced by accused and therefore non consideration of this vital aspect in the light of the above defence of the accused in the light of the observation made by the trial court with reference from para No.8 to 13 from page No.6 to 18 of the impugned judgment it is clear that trial court has erred in appreciating the evidence of PW-1 in the light of several admissions elicited during the cross-examination of PW-1 and as well as failed to appreciate the legal aspect of the matter with regard to the alleged offence in the light of several case law authorities relied by the learned counsel for the accused prospectively having regard to the entire facts and circumstances of the case in hand, there is no proper appreciation of the evidence and material documents relied by the defense in this case by the court below and as well as there is a need to consider the legal aspect of the sanction matter as per the reference made by the learned counsel for the appellant in respect of C.P. No.106/2001 by the court below and as well as the other legal aspects of this case. Therefore, under these circumstances judgment of conviction passed by the court below convicting the appellant on 30.5.2008 is unsustainable under the law and the on the contrary the evidence of PW-1 and materials available on record which are relied by the complainant are not cogent and convincing inorder to hold accused No.2 guilty of the alleged offence. Therefore, accused 45 Crl.A. No.503/2008 No.1 and 2 are entitled for acquittal. Thus, considering all these circumstances it can be inferred that appellant is able to substantiate his case that the judgment under this appeal is erroneous and suffers from infirmities and thereby interference of this court is necessary and thereby this Point No.1 is answered in the Affirmative.
38. POINT No.2:- Having regard to my above observations, and findings on Point No.1 in affirmative, I proceed to pass the following;
ORDER
The appeal preferred by the
appellant/accused no.1 and 2 under Section 374 of Cr.P.C., is hereby allowed.
Consequently the judgment passed by the learned 15th A.C.M.M., Court Bangalore in C.C. No.32037/2001 dated 30.5.2008 is hereby set aside by remanding back this case to the concerned court below for fresh disposal according to law with a direction that this case is old case to be disposed as early as possible as per the law.
Sent back the LCR with copy of this Judgment to the court below forthwith.
(Dictated to the stenographer on computer, corrected and then pronounced by me in the open Court on this the 8th day of August, 2018) (S.A. CHIKKORDE) LXI Addl. City Civil & Sessions Judge, Bangalore City.
46 Crl.A. No.503/2008 47 Crl.A. No.503/200825.06.2018 App -M.B. Respt -S.S Judgment pronounced in the Open Court (vide separate order) ORDER The appeal preferred by the appellant/accused no.1 and 2 under Section 374 of Cr.P.C., is hereby allowed.
Consequently the judgment
passed by the learned 15th
A.C.M.M., Court Bangalore in
C.C. No.32037/2001 dated
30.5.2008 is hereby set aside.
Sent back the LCR with
copy of this Judgment to the
court below forthwith.
LXI Addl. City Civil & Sessions Judge,
Bangalore City.
48 Crl.A. No.503/2008