Bangalore District Court
Mrs. Malakumar vs M/S. Tata Steel Processing on 9 March, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 9th day of March, 2022.
Crl. Appeal. No.25102/2021
Appellant:- Mrs. Malakumar,
W/o Mr. Mohan Kumar,
Proprietrix of M/s L. V Industries,
Having her office at
No.73 & 74, Srigandadakavalu,
17th Cross, Vishwaneedam,
Behind Konaga Garments,
Bengaluru- 560091.
[By Sri. K. S. Chandrakanth Gowda -
Adv]
V/s
Respondent: M/s. TATA STEEL PROCESSING
AND DISTRIBUTION LIMITED,
A company incorporated under the
Companies Act, 1956,
having its registered Office at
TATA Centre, No.43,
Jawaharlal Nehru Road,
Kolkata.
2 Crl.Appeal.No.25102/2021
And its branch Office at No.16,
S.P. Building, 2nd Floor, Apple Villa,
Lalbagh Main Road,
Bengaluru - 560 027.
Reptd by its Manager -Accounts
Mr. Jaimurthy
Aged about 43 years,
S/o. Mr. Annaiah
(By Sri. P. B Appiah -Adv.)
JUDGMENT
This Appeal is preferred by the Appellant/ Accused U/Sec. 374(3) of Cr.P.C, being aggrieved by the Judgment of conviction passed by the XIV Addl. CMM, Mayohall Unit, Bangalore in CC.No.56804 of 2019, dtd.09.04.2021, convicting the Accused for the offence punishable U/Sec. 138 of NI Act, thereby sentencing her to pay fine of Rs.25,00,000/-. In default to undergo simple imprisonment for a period of 15 months. Further directed to pay an amount of Rs.24,90,000/- as compensation to the Complainant U/Sec. 357(1) of Cr.P.C and Rs.10,000/- to the State Ex- Chequer, out of the fine amount.
3 Crl.Appeal.No.25102/20212. The Brief facts leading to filing of the present Appeal are:
The present Respondent filed a Complaint U/Sec. 200 of Cr.P.C. against the present Appellant, alleging that, it is a company incorporated under the Companies Act, 1956, carrying on the business of processing and distribution of Iron and steel materials, manufactured by TATA Steel Ltd., and other manufactures. Complainant is represented by its Manager Accounts, being duly authorized by letter of authorization issued by the Complainant dtd.20.08.2019. The Accused carries on business as the Proprietrix of the Proprietory concern, under the name M/s L V Industries, which manufacture Battery boxes and various other battery manufactures. Further contends that, it has supplied certain materials to the Accused, such as Hot Rolls Cut Coils of various specifications and dimensions and in various quantities. On supply of the said materials Invoices bearing Nos.C/18292/000707 dtd.22.08.2018 for Rs.6,29,152- 40 ps; C/18292/001003 dtd.11.10.2018 for Rs.9,53,493- 10ps; C/18292/001011 dtd.12.10.2018 for Rs.5,93,540/-; and C/ 18292/001012 4 Crl.Appeal.No.25102/2021 dtd.12.10.2018 for Rs.5,88,749-20 ps, were raised against the Accused. The total value of all Invoices amounts to Rs.27,64,934-70 ps. The goods raised under the said Invoices were consigned to the Accused, under Consignment Notes bearing Nos.4922, 5238, 5243 and 5244, respectively. Inorder to discharge the part payment of the dues, the Accused has issued three Cheques bearing Nos.638324, dtd.04.07.2019 for Rs.9,53,493/-; 638326 dtd.04.07.2019 for Rs.5,93,540/-; and 638327 dtd.04.07.2019 for Rs.5,88,249/-. The said Cheques were presented by it, through its banker HDFC Bank Ltd., Richmond Road Branch, Bengaluru on 04.07.2019. On presentation of the said Cheques, the same have returned unencashed with an endorsement "Insufficient Funds" on 05.07.2019. Thereafter it has got issued a Legal Notice through its counsel by RPAD to the Appellant on 09.07.2019. The said Notice was received by the Appellant on 12.07.2019. Neither the Appellant has complied nor replied the said Notice.
On completion of the stipulated period required under the statute, it was constrained to file the 5 Crl.Appeal.No.25102/2021 present Complaint against the Appellant/Accused for the offence punishable U/Sec.138 of N.I.Act.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C., to the Appellant /Accused on 19.10.2019. The Appellant has appeared before the Trial Court on 24.01.2020 and she was enlarged on bail. Plea/Substance of Accusation of the Appellant/Accused was recorded by the Trial Court on 24.01.2020, wherein the Appellant has pleaded not guilty and claims to be tried.
4. The Complainant inorder to prove its case, got examined its Manager as P.W.1 and got marked 18-documents as Ex.P.1 to Ex.P18. PW1 was cross examined on behalf of the Appellant/Accused on 25.02.2020, 04.03.2020 & 07.03.2020.
Statement of the Accused/ Appellant U/Sec. 313 of Cr.P.C., was recorded by the Trial Court on 15.02.2020.
The Appellant/Accused has not led her evidence.
6 Crl.Appeal.No.25102/2021On hearing both the sides, the Trial Court has passed the Judgment, convicting the Accused for the offence punishable U/Sec. 138 of N.I. Act on 09.04.2021. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
5. The Appellant has filed an application at IA No.1/2021 U/Sec.5 of Limitation, alongwith the Appeal Memo. On preferring the Appeal by the Appellant/Accused, the execution and operation of the Judgment, under challenge was suspended initially for a period of 3 months, on 19.07.2021. Notice of the Appeal memo and I.A.Nos.1/2021 and 2/2021 was issued to the Respondent and TCR were called-for. Respondent set-in its appearance on 19.08.2021. TCR were secured on 19.08.2021.
6. Heard the Arguments of the Learned Counsels for the Appellant and the Respondent.
The Learned Counsel for the Appellant has placed his reliance on four decisions referred by him before the Trial Court, which is in the Trial Court record at Page No.89 to 92.
7 Crl.Appeal.No.25102/2021Learned Counsel for the Appellant has filed Written Arguments on 05.03.2022, with due Notice to the Learned Counsel for the Respondent. I have carefully gone through the Written Arguments filed on behalf of the Appellant.
7. The Appellant has preferred this Appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has gravelly erred in convicting the Appellant for the offence punishable U/Sec. 138 of N.I. Act, which is manifestly erroneous and opposed to the facts and circumstances of the case;
b) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;
c) The Trial Court has failed to consider that, the Respondent had taken blank Cheques from the Appellant, as security;
d) The Trial Court has failed to consider that, the goods have not been supplied by the Complainant, as contended;
e) The Trial Court has failed to consider the competency of the person who has filed the Complaint and has given the evidence as PW1, on 8 Crl.Appeal.No.25102/2021 behalf of the Complainant. He was not duly authorized, as required by law;
f) The Trial Court has failed to consider that, the Complainant has not filed the certificate required U/Sec.65(b) inrespect of the Invoices marked at Ex.P11 to Ex.P14;
g) The Trial Court has failed to attach more importance and evidentiary value to the Consignment Notes marked at Ex.P15 to Ex.P18;
h) The Trial Court has failed to note that E-
way Bill Numbers have not been mentioned in Ex.P11- Tax Invoice;
i) The Trial Court has failed to consider that, the as per the provisions of CGST Act, only triplicate Invoices are to be raised and not in four sets, as raised by the Complainant. It is against the provisions of the said Act;
j) The Trial Court has wrongly concluded that, the Complainant is entitle for presumption U/Sec.139 of NI Act and the Appellant / Accused has failed to rebut the said presumption.
Hence, prayed to allow the said Appeal and setaside the Judgment of Conviction passed by the Trial Court.
9 Crl.Appeal.No.25102/20218. Following points arise for my consideration;
1. Whether the Appellant/ Accused makes out a case to condone the delay, in preferring this Appeal?
2. Whether the Trial Court is right in holding that the Respondent/ Complainant is initially entitle for the benefit of presumption, available U/Sec. 139 of N.I. Act?
3. Whether the Appellant/ Accused proves on the basis of preponderance of probability that, the Cheques in question- Ex.P1 to Ex.P3 were issued by her, to the Respondent, as security; and the Respondent without supplying the goods has misused the said Cheques?
4. Whether the Trial Court is right in holding that the Appellant/ Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I. Act?
5. Whether the Appellant/ Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.56804/2019, dtd.09.04.2021, is perverse and deserves to be setaside, thereby calling for the interference of this Court?
6. What Order?
10 Crl.Appeal.No.25102/20219. My finding on the above points are as under:
Point No.1 : In the Affirmative;
Point No.2 : In the Affirmative;
Point No.3 : In the Negative;
Point No.4 : In the Affirmative;
Point No.5 : In the Negative;
Point No.6 : As per final order for the following :
REASONS The rank of parties will be referred to as they were before the Trial Court.
10. Point No.1:-
I.A.No.1/2021 is filed by the Appellant U/Sec.5 of the Limitation Act, praying to condone the delay caused in preferring this Appeal.
The reason shown by the Appellant is that, due to existence of COVID-19 epidemic, second wave situation, she could not prefer and file this Appeal intime.
The Trial Court has passed the Judgment of conviction on 09.04.2021. And the present Appeal is preferred by the Appellant on 13.07.2021. Admittedly, the said period is covered by the Orders passed by the Hon'ble Apex Court, dealing with 11 Crl.Appeal.No.25102/2021 condonation of the delay, to be caused during COVID-19 Pandemic, second wave situation. The said period is also covered under the SOP, issued by the Hon'ble High Court of Karnataka.
11. On perusal of the records, it is seen that, there is a delay of 2 months 04 days in filing this Appeal. The delay caused in preferring the Appeal is a bonafide, unintentional and not deliberate one. It is not an abnormal delay.
12. Looking to the nature of the proceedings, the seriousness of the offence involved in the case, the reasons shown in the application at I.A.No.1/2021, I am of the considered opinion that, if the application filed by the Appellant to condone the delay, is rejected on technical grounds, it may amount to shutting the doors of justice to the deserving citizens, which may even amount to violation of Principles of Natural Justice. If the application is allowed and the Appeal is heard on merits, no loss or prejudice will be caused to either of the parties to the case.
12 Crl.Appeal.No.25102/2021So also the Respondent has not brought on record as to whether the Appellant has secured any benefits for filing the Appeal with such delay.
Thus, I am of the firm opinion that, the delay of 02-months 04 days, caused in preferring the Appeal, deserves to be condoned and the Appeal is to be heard on its merits.
Hence, I answer POINT NO.1 IN THE
AFFIRMATIVE.
13. Point No.2:
As per the averments takenup by the
Complainant in the complaint, wherein it is
contended that, towards part payments of the dues the Accused has issued the Cheques -Ex.P1 to Ex.P3, to it. On presentation of the said Cheques, the same have been returned with an endorsement "Funds Insufficient" on 05.07.2019, as per Ex.P4 to Ex.P6. On receipt of the said endorsements, it has got issued a Legal Notice through its counsel on 09.07.2019 to the Accused, as per Ex.P8, by RPAD. The Notice is served on the Accused, as per the Postal Acknowledgment-Ex.P9.
13 Crl.Appeal.No.25102/2021The Complainant has produced Statement of Accounts pertaining to the Accused at Ex.P7, Authorization Letter at Ex.P10, four Tax Invoices at Ex.P11 to Ex.P14 and four goods consignments notes at Ex.P15 to Ex.P18.
14. On the basis of the preliminary evidence, the Trial Court has issued summons to the Accused on 19.10.2019. Perused the said orders. Do not find any error, in it.
15. The Accused has appeared before the Trial Court on 24.01.2020 and she was enlarged on bail. The Trial Court has recorded Plea/Substance of Accusation of the Accused on 24.01.2020, wherein the Accused has pleaded not guilty and claims to be tried.
16. The Accused has taken up a defence that, she has issued signed blank Cheques - Ex.P1 to Ex.P3 to the Complainant, as security. This defence can be found in the cross-examination of PW.1, Page No.15, Para No.1, Line Nos.1 to 7, which reads as under:-
14 Crl.Appeal.No.25102/2021".. ಈ ಪ್ರಕರಣದಲ್ಲಿರುವ ನಿಪಿ-1 ರಿಂದ ನಿಪಿ-3 ಚೆಕ್ಕುಗಳನ್ನು ಸಹ ನಾವು ಭದ್ರತೆಗಾಗಿ ಆರೋಪಿಯಿಂದ ಪಡೆದಿರುತ್ತೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಮುಖ್ಯ ವಿಚಾರಣೆಯಲ್ಲಿ ಹೇಳಿದಂತೆ ನಮ್ಮ ಕಂಪನಿಯು ಆರೋಪಿ ಕಂಪನಿಗೆ ಮಾಲು ಪೂರೈಕೆ ಮಾಡಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಫಿರ್ಯಾದಿನಲ್ಲಿ ಹೇಳಿದಂತೆ ಮಾಲು ಪೂರೈಕೆ ಮಾಡದೆ ಇದ್ದರೂ ಸಹ ಭದ್ರತೆಗಾಗಿ ನೀಡಿದ ಖಾಲಿ ಸಹಿ ಮಾಡಿದ ಚೆಕ್ಕುಗಳನ್ನು ದುರುಪಯೋಗಪಡಿಸಿಕೊಂಡು ಈ ಸುಳ್ಳು ಫಿರ್ಯಾದನ್ನು ಸಲ್ಲಿಸಿದ್ದೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ......."
As per this evidence Accused admits that, the Cheques -Ex.P1 to Ex.P3 belongs to her and the signature on the said Cheques, has not been denied by her.
17. Thus, as per the documentary evidence produced by the Complainant, as per Ex.P1 to Ex.P18 and on the basis of the defence of the Accused, referred to supra, it can be said that the Complainant has initially proved that, the Cheques - Ex.P1 to Ex.P3 belong to the Accused; and the signature on it, is of the Accused. And on presenting the said Cheques, the same have been returned un-encashed, as per Ex.P4 to Ex.P6, for which, it had issued Legal Notice as per Ex.P8, which was served on the Accused as per Postal AOD-Ex.P9.
15 Crl.Appeal.No.25102/2021Thus, the above documentary and oral evidence will suffice the Complainant, to have initial benefit of presumption available U/Sec.138, 139 of N.I. Act.
Therefore, Complainant has shown that, it is initially entitle for the benefit of Presumption available U/Sec. 139 of N.I. Act. The Trial Court has considered the said aspect. No fault can be attributed on the Trial Court in this regard.
Hence, POINT NO.2 IS ANSWERED IN THE AFFIRMATIVE.
18. POINT NO.3:
As per the trite Principle of law dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case of Rangappa V/s Mohan, reported in (2010) 11 SCC 441, wherein it is held that, "Presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption".16 Crl.Appeal.No.25102/2021
Now it is for the Accused to rebut the said presumption available to the Complainant U/Sec.139 of N.I.Act.
19. The first defence taken by the Accused is that, competency of person to file a Complaint and to depose as PW.1 on behalf of the Complaint Company.
19.01. The Learned Counsel for the Appellant would contend that, since the Complainant Company is registered under the Companies Act, as per Sec.291 of the Companies Act, an authorized person is the only person competent to file the Complaint on behalf of the company and such Authorization is required to be made, either byway of Board Resolution, or through Memorandum of Association and Articles of Association. But in the present case, neither any resolution is presented on behalf of the Complainant, nor any Memorandum of Association or Articles of Association, are produced to show competent authorization by the Complainant Company either to file a Complaint, or to depose on behalf of the Complainant Company. He has placed 17 Crl.Appeal.No.25102/2021 his reliance on the decision relied by him before the Trial Court, viz.,
a) of the Hon'ble High Court of Karnataka, in the case of CREF Finance Ltd., Kolkata V/s Sree Shanthi Homes Pvt. Ltd. Bengaluru and Anr., reported in ILR 2014 Kar 2168, wherein it observed in Para No.7 and held in Para No.16, as under:-
"7. The Board of Directors of the Company collectively entitled to exercise the powers and to do the acts on behalf of the Company. Section 12 Crl.A 1419/06 291 of the Companies Act confers the authority to the Board of Directors collectively. Therefore, if a complaint is to be filed, it is necessary for the Board of Directors to authorize any person to file a complaint or depose to the facts in a case and such an authority could be granted by the Board of Directors only under a resolution. The complainant has produced Ex.P1, which is a certified copy of the Resolution dated 27.06.2000, which authorizes one Sri. Ravi Puri and Sri. Pramod Kumar, to sign any document in connection with the legal proceedings pertaining to recovery of the amount due and dishonour of cheques and to do all acts and deeds necessary in this behalf. It is in pursuance of this Resolution-Ex.P1 that P.W.1-Pramod Kumar has deposed on behalf of the Company. This Resolution authorizes the aforesaid two persons to do all necessary acts in the legal proceedings.18 Crl.Appeal.No.25102/2021
But, the perusal of the complaint reveals that it is signed by "Ravi Seth", who is said to be the authorized signatory and Vice- President of the Company. The name of Sri. Ravi Seth is not seen in the Resolution at Ex.P1. So also, the complainant has not produced any other Resolution or document conferring authority to Sri. Ravi Seth to file or sign a complaint on behalf of the Company. The appellant has not explained as to who authorized Sri. Ravi Seth to file or sign the complaint and no Resolution of the Board or any document has been produced in the evidence. Learned counsel for the appellant has not explained any authority having been granted to Sri. Ravi Seth to file a complaint on behalf of the Company. Therefore, the complaint of the appellant cannot be maintained in the absence of any authority to Sri. Ravi Seth to file the complaint on behalf of the Company. Mere fact that P.W.1-Pramod Kumar was authorized on behalf of the Company either to file the complaint or 14 Crl.A 1419/06 depose to the facts, he having not signed the complaint, his authority in the absence of his signature on the complaint is of no help to the appellant. On this aspect of the matter, a reliance is placed on the decision of this Court reported in ILR 2007 Kar. 3155 [Director, Maruti Feeds and Farms Pvt. Ltd. Vs. Basanna Pattekar]; wherein it is held that the Company is a juristic person and any person on behalf of the Company has to be authorized by the Company under Articles of Association or by a separate resolution to depose on behalf of the Company. Therefore, this Court held that dismissal of the complaint is sound and 19 Crl.Appeal.No.25102/2021 proper. Though the decision refers to an authority to depose to the facts, the principle of law as such is applicable even to an authority to sign the complaint.
16. Despite the findings, the accused are due for the sum mentioned in the cheques-Exs.P4 to 7 and that P.W.1-Sri. Pramod Kumar has the 28 Crl.A 1419/06 authority to depose before the Court in the present case, the complaint instituted by the appellant in the trial Court is not maintainable for the sole reason that Sri. Ravi Seth, who has signed the complaint has no authority in law to represent the Company as there is no resolution by the Company authorizing Sri. Ravi Seth to file the complaint. The trial Court in addition to other grounds has dismissed the complaint of the appellant on this ground as well. In this Appeal though the appellant is able to establish all other grounds, as the complaint itself is incompetent for the reasons aforesaid, the dismissal order passed by the trial Court cannot be interfered with."
b) of the Hon'ble High Court of Karnataka, in the case of Canara Workshops Ltd., Mangalore V/s Mantesh, reported in 2014 (5) KCCR 854, wherein it is observed in Para No.5.1 and 5.2 as under:-
"Section 142 of the NI Act lays down that no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in 20 Crl.Appeal.No.25102/2021 due course of the cheque. If the payee is a corporate body or a company incorporated under the Companies Act, in terms of Section 291 of the Companies Act, 1956, it is the Board of Directors who are entitled to exercise all powers as the company is authorised to exercise and do. Thus, a company, though a legal entity, can act only through its Board of Directors (See: National Small Industries Corporation Limited vs. Harmeet Singh Paintal, (2010)3 SCC 330).
Under Section 291 of the Companies Act, except where express provision is made, that the powers of a company in respect of a particular matter, are to be exercised by the company in a general meeting. The individual directors have such powers only as are vested in them by the Memorandum and Articles of Association. The question of authority to institute a suit or other proceeding on behalf of a company is therefore not a technical matter as it often affects the policy and finances of the company and unless the power to institute a proceeding is specifically conferred on a particular director, he would have no authority to institute a suit or other proceeding on behalf of the company and such power can be conferred by the Board of Directors only by passing a resolution in that regard."
c) of the Hon'ble High Court of Karnataka, in the case of George Joseph and Anr V/s HMT (International) Ltd., Bengaluru, and Anr., 21 Crl.Appeal.No.25102/2021 reported 2015 (1) AKR 822, wherein it is observed in Para No.7, as under:-
"Section 291 of the Companies Act, 1956, did embody the principle that subject to the specific exceptions mentioned, the directors of the company, as its governing body, are entitled to exercise all the powers of the company. In the instant case on hand, it is noticed by the lower appellate court that the Articles of Association of the company, did confer the power on the Directors to sue or defend any proceedings on behalf of the company. A delegation of such power can only be by a resolution of the Board of Directors. Hence, a letter of authorization or a Power of Attorney executed by the Chairman or other officer of the company, without a delegation of the power to institute such proceedings having emanated from the Board of Directors, would invalidate any proceedings brought without the necessary authority. This lack of authority could have been supplied even before the appellate court when the issue arose for consideration, as has been observed by the apex court in MMTC's case as well in the case of United Bank of India v. Naresh Kumar (1996) 6 SCC
660. In other words even on a presumption, that in the face of a letter of authorization and a power of attorney having been executed, authorizing the concerned person to file and prosecute the complaint, that there was an implied authorization by the Board, it ought to have been formally ratified, when the same was questioned before the courts below.
This court has consistently held that for any person to represent and tender evidence 22 Crl.Appeal.No.25102/2021 in a court of law on behalf of a company, ought to be authorized under the Articles of Association of the company or by a separate resolution by the Board of Directors.
d) of the Hon'ble High Court of Bombay in the case of Valpoi Valley Botanicals Pvt. Ltd., V/s Shri. Anil Ashok Jaware, reported in 2016 (1) DCR 698, wherein it is observed in Para Nos.13 and 14 as under:-
"13. In the case of, Shri Ashok Bampto Pagui Vs. M/s Agencia Real Canacona Pvt. Ltd. and Another, reported in 2007 ALL MR (Cri) 2338, there was a Power of Attorney in favour of one Nishakant Pednekar, who was examined in support of the complaint. That Power of Attorney, was shown to be given by the Managing Director and the Director of the complainant Company. The said Power of Attorney indicated that it was given in pursuance to Resolution dated 10.02.2003 passed by the company. However, copy of the said Resolution was not produced. This Court after considering the various judgments including the judgment of the Honble Supreme Court, in the case of, MMTC Ltd. (supra) has held thus, in paragraph 21 of the judgment:
"21. A Director, as an individual Director, has no power to act on behalf of the company. He is only one of a body of Directors called the Board of Directors and alone he has no power except such as may be delegated to him by the Board of Directors or given to him by the articles of association of a 23 Crl.Appeal.No.25102/2021 company. In the case at hand, the complaint was filed by one of the Directors and as already stated by a Director who had initially complained to the Police that the subject cheque was forged by the accused, and, without any resolution of the company or any authorization from the Board of Directors. The view held by me is consistent with the views expressed in the decisions referred to herein above, namely, those of the Madras High Court in Ruby Leather Exports Vs. K. Venu (supra), Andhra Pradesh High Court and Delhi High Court which is now confirmed by the view held by the Apex Court in Dale and Carrington Invt. (P) ltd. And another Vs. P.K. Prathapan and others (supra) and therefore I hold that the complaint in this case was not filed by the company as required under Clause (a) of Section 142 of the Act and on such a complaint no process could have been issued much less a conviction imposed. The said Shri Prashant Shirodkar could not have filed the same merely in his capacity of a Director. He had to file the same only with authorization from the Board of Directors. As already stated, prima facie, it appears that such authorization was issued by the complainant company in favour of Shri Pednekar as can be seen from the copy of power of attorney produced."
14. Thus, it can be seen that unless and until it is shown that the Director, Mr. Naresh Natrajan is authorised to sign an Authority Letter in favour of Mr. Rakesh Singh, the same would be of no avail to the appellant. In that view of the matter, the view taken by the leaned Magistrate appears to be a plausible view, which does not require interference, in 24 Crl.Appeal.No.25102/2021 the exercise of limited jurisdiction available to this Court, in an Appeal against acquittal."
19.02. Percontra, the Learned Counsel for the Respondent would contend that, the Complainant Company has authorized its Manager to represent it in the case, on issuing Authorization letter as per Ex.P10; and the same has been pleaded by the Complainant company in the Complaint at Para No.2. Further he would contend that, when an authorization is issued, as Ex.P10, the Manager of the Complainant Company will be competent both to file the Complaint, as well as to depose on behalf of the Complainant Company.
19.03. On careful perusal of the contentions taken up by the Complainant Company in causetitle of the Complainant, as well as in Para No.2, it is seen that, it is specifically mentioned that the Complainant Company is represented by its Manager Accounts Jaimurthy, who has filed this Complaint; and who has deposed in this case on behalf of the Complainant as PW.1.
25 Crl.Appeal.No.25102/202119.04. Further the Complainant Company has produced Authorization letter at Ex.P10. On careful perusal of this document, it is seen that, the working Managing Director of the Complainant Company by name Abraham G Sttephanos has authorized Mr. Jaimurthy S/o Annaiah, Manager Accounts of the Company to file a Complaint U/Sec.200 of Cr.PC against the Accused and to depose on its behalf, in the said case. Further it is mentioned in the said document that, the powers to the said working Managing Director has been conferred by the Board of Directors of the Company.
19.05. The Complainant has also produced Tax Invoices at Ex.P13 and Ex.P14. On careful perusal of the said Tax Invoices, it is seen that, the said Tax Invoices have been signed by the person who has filed the Complaint and has deposed on behalf of the Complainant Company as PW.1, who has been shown in the said documents as Authorized Signatory of the Complainant Company.
26 Crl.Appeal.No.25102/202119.06. When the Complainant Company averred in the Complaint about its representation through its Manager Accounts; and when Authorization letter is produced, as per Ex.P10, authorizing the Manager Accounts to file the Complaint; and to depose on its behalf, then under such circumstances, the said Manager Accounts will be competent to file the Complaint; and to depose on behalf of the Complainant Company, who is a juristic person. Competency cannot be challenged on the score of non production of either Board Resolution or Memorandum of Association or Articles of Association.
Further the Appellant has not shown as to what is the prejudice cause either to her, or to the Complainant Company, for representation made on behalf of the Complainant Company by PW.1, either in filing the Complaint against her; or in deposing on behalf the Complainant Company. So also, the Appellant has failed to show that, the Authorization Letter produced at Ex.P10, is false; and PW1 has not been authorized by the Complainant Company. Under such circumstances, I do not find any stuff in 27 Crl.Appeal.No.25102/2021 the contention taken up by the Learned Counsel for the Appellant, in this regard.
19.07. I have carefully gone through the Judgment of the Trial Court wherein, the Trial Court has opined in Para Nos.16 and 17 that, the Manager Accounts is a competent person to represent the Complainant Company; and to depose on behalf of the Complainant Company, in this case, on the strength of Authorization Letter - Ex.P10. No infirmity can be attach to such opinion of the Trial Court.
20. The second defence taken up by the Appellant is that, she has not received the goods. Inotherwords, goods have not been supplied to her by the Complainant Company. This type of defence can be seen as per the cross-examination of PW.1, at Page No.15, Para No.1, Line Nos.7 to 9, which reads as under:-
"... ನಾನು ಹೇಳಿದಂತೆ ಆರೋಪಿಯು ದಿನಾಂಕಃ12.10.2018 ರಲ್ಲಿ ಹಾಗೂ 18.08.2018 ರಲ್ಲಿ ಪರ್ಚೇಸ್ ಆರ್ಡರುಗಳನ್ನು ನಮ್ಮ ಕಂಪನಿಗೆ ನೀಡಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ..."
28 Crl.Appeal.No.25102/2021As per this evidence, a suggestion is made to PW1 on behalf of the Accused that, goods have not been supplied to her. The same has been denied by PW.1.
20.01. The Complainant has produced Tax Invoices at Ex.P11 to Ex.P14 and Goods Consignment Notes /LR Receipts at Ex.P15 to Ex.P18.
As per the Tax Invoices produced by the Complainant at Ex.P11 to Ex.P14, it is seen that, the Complainant Company has raised the Invoices for supply of goods to the Accused. The said Invoices are numbered as CI18292/000707 dtd.22.08.2018; CI18292/001003; dtd.11.10.2018; CI18292/001011 dtd.12.10.2018; and CI18292/001012 dtd.12.10.2018, respectively.
As per the Goods Consignment Notes produced by the Complainant at Ex.P15 to Ex.P18, it is seen that, Ex.P15 Consignment Note pertains to Invoice No.CI18292/000707, the goods sent under the said Consignment is received by the Accused Company on 22.08.2018, the seal of the Accused Company with 29 Crl.Appeal.No.25102/2021 signature can be seen in the column, meant for mentioning of delivery of the goods.
Ex.P16 Consignment Note pertains to Invoice No.CI18292/001003, the goods sent under the said Consignment is received by the Accused Company on 11.10.2018, the seal of the Accused Company with signature can be seen in the column, meant for mentioning of delivery of the goods.
Ex.P17 Consignment Note pertains to Invoice No.CI18292/001011, the goods sent under the said Consignment is received by the Accused Company on 12.10.2018, the seal of the Accused Company with signature can be seen in the column, meant for mentioning of delivery of the goods.
Ex.P18 Consignment Note pertains to Invoice No.CI18292/001012 the goods sent under the said Consignment is received by the Accused Company on 12.10.2018, the seal of the Accused Company with signature can be seen in the column, meant for mentioning of delivery of the goods.
20.02. The Learned Counsel for the Appellant would contend that, the Tax Invoices and the Goods Consignment Notes marked as Ex.P11 to 30 Crl.Appeal.No.25102/2021 Ex.P18 are the secondary evidence; and Ex.P11 to Ex.P14 are the computer generated copies, which requires certificate U/Sec.65-B of Indian Evidence Act. Since the Complainant has failed to file the certificate as required U/Sec.65-B of Indian Evidence Act, those documents cannot be taken in to consideration. This type of defence can seen as per the cross-examination of PW.1, at Page No.13, Para No.1, which reads as under:-
"ನಿಪಿ-11 ರಿಂದ ನಿಪಿ-14 ಇನ್ವಾಯ್ಸಗಳು ಪ್ರಿಂಟೆಡ್ ನಮೂನೆಯಲ್ಲಿ ಇದೆ. ಸದರಿ ಇನ್ವಾಯ್ಸನಲ್ಲಿ ಟ್ರಾನ್ಸ್ಟೊರ್ಟರಿಗೆ ಸಂಬಂಧಿಸಿದ ವಿವರಗಳನ್ನು ತೋರಿಸಲಾಗಿದೆ. ನಿಪಿ-11 ರಿಂದ ನಿಪಿ-14 ರಲ್ಲಿ ಟ್ರಾನ್ಸ್ಟೊರ್ಟಗೆ ಸಂಬಂಧಪಟ್ಟ ವಿವರಗಳನ್ನು ನಮೂದು ಮಾಡಿದುದರಿಂದ ಅವುಗಳು ಜಿ.ಎಸ್.ಟಿ ಅಧಿನಿಯಮದ ಕೆಳಗೆ ರೈಸ್ ಮಾಡಿದ ಇನ್ವಾಯ್ಸಗಳಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಪಿ-12 ರಿಂದ ನಿಪಿ - 14 ರಲ್ಲಿ ಈ - ವೇ ಬಿಲ್ ನಂಬರು ಹಾಗೂ ಎಲ್ ಆರ್ ನಂಬರುಗಳನ್ನು ಕೈಬರಹದಲ್ಲಿ ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಸರಿ. ಇನ್ವಾಯ್ಸು ರೈಸ್ ಮಾಡಿದ ನಂತರವೇ ಈ - ವೇ ಬಿಲ್ ಜನರೇಟ್ ಆಗುವುದರಿಂದ ಈ - ವೇ ಬಿಲ್ ನಂಬರನ್ನು ಕೈಬರಹದಲ್ಲಿ ಬರೆಯಲಾಗಿದೆ ಎಂದು ಸಾಕ್ಷಿಯು ಮುಂದುವರೆದು ಹೇಳುತ್ತಾರೆ. ನಿಪಿ-12 ರಿಂದ ನಿಪಿ-14 ರಲ್ಲಿ ಈ - ವೇ ಬಿಲ್ ನಂಬರು ಹಾಗೂ ಎಲ್ ಆರ್ ರಸೀದಿ ನಂಬರು ಹಸ್ತಾಕ್ಷರದಲ್ಲಿ ನಮೂದು ಮಾಡಿದ ವ್ಯಕ್ತಿಯು ಮೇಲು ರುಜು ಮಾಡಿರುವುದಿಲ್ಲ. ನಿಪಿ-11 ರಲ್ಲಿ ಈ - ವೇ ಬಿಲ್ ನಂಬರನ್ನು ನಮೂದು ಮಾಡಿಲ್ಲ ಎಂದರೆ ಸರಿ."
Further Learned Counsel for the Appellant would contend that, triplicate copy of Invoices are to be issued, but the Complainant has issued four 31 Crl.Appeal.No.25102/2021 copies of Invoices, which are against the provisions of the Central Goods and Services Tax Rules, 2017. He would further contend that, even on this count also the said Invoices cannot be considered at all, as the said Invoices are raised in violation of provisions of Central Goods and Services Tax Rules Act.
20.03. Thus, the Learned Counsel for the Appellant has taken up three fold contentions under this defence.
20.04. Coming to the first line of contentions taken up by the Learned Counsel for the Appellant that, Ex.P11 to Ex.P14 - Tax Invoices; and Ex.P15 to Ex.P18 - Goods Consignment Receipts are secondary evidence, led by the Complainant.
20.04.01. On careful perusal of the Consignment Receipts marked as Ex.P11 to Ex.P15, those are the computer generated receipts, coupled with the cross-examination of PW.1, at Page No.11, Line Nos.1 to 9, which reads as under:-
".. ಜಿ ಎಸ್ ಟಿ ಅಧಿನಿಯಮದ ಕೆಳಗೆ ಇನ್ವಾಯ್ಸುಗಳು ತ್ರಿಪ್ರತಿಯಲ್ಲಿ ಇದ್ದು ಮೂಲ ಇನ್ವಾಯ್ಸನ್ನು ಖರೀದಿದಾರರಿಗೆ ಕೊಟ್ಟು ಅದರ ಇನ್ನೊಂದು ಪ್ರತಿಯನ್ನು ಟ್ರಾನ್ಸ್ರ್ಟೋರ್ಟಿಗಾಗಿ 32 Crl.Appeal.No.25102/2021 ನೀಡಿ ಇನ್ನೊಂದು ಪ್ರತಿಯನ್ನು ಮಾಲು ಪೂರೈಕೆಗಾಗಿ ತನ್ನ ಬಳಿ ಇಟ್ಟುಕೊಳ್ಳಬೇಕು ಎಂದರೆ ಸರಿಯಲ್ಲ. ಸಾಕ್ಷಿಯು ಮುಂದುವರೆದು ನಾಲ್ಕು ಪ್ರತಿಯಲ್ಲಿ ಮೂಲ ಪ್ರತಿ ಹಾಗೂ ಇನ್ನೊಂದು ಪ್ರತಿಯು ಖರೀದಿದಾರರು ಇಟ್ಟುಕೊಂಟು ಎಲ್ ಆರ್ ರಸೀದಿಯ ಮೇಲೆ ಸಹಿಯನ್ನು ಮಾಡಿ ಕಳುಹಿಸಿಕೊಡುತ್ತಾರೆ ಹಾಗೂ ನಾಲ್ಕು ಪ್ರತಿಯಲ್ಲಿ ಎಂದು ಪ್ರತಿಯು ಕಛೇರಿ ಪ್ರತಿಯಾಗಿ ಪೂರೈಕೆದಾರರ ಬಳಿ ಇರುತ್ತದೆ ಹಾಗೂ ಇನ್ನೊಂದು ಪ್ರತಿ ಡಿಪೋದಲ್ಲಿ ಇರುತ್ತದೆ. ..."
It can be said that, as per the oral evidence and the documentary evidence Ex.P11 to Ex.P15, PW.1 contends that, they are generating four copies of the Tax Invoices.
20.04.02. Explanation 2 to Sec.62 of Evidence Act, reads as under:-
"Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original."
So applying the said provision of law to the facts of the instant case at hand, when PW.1 contends that Tax Invoices are generated by one uniform process, then each of such four generated Tax Invoices, will be come a Primary Evidence.
33 Crl.Appeal.No.25102/202120.04.03. Coming to the Goods Consignment Notes which are marked at Ex.P15 to Ex.P18, on perusal of the said document, it can be seen that, the said copies are the carbon copy.
Since those Goods Consignment Notes are carbon copies, they can be admitted as a primary evidence, as they are prepared by one uniform process by which the original was prepared. I find force to my above view, as per the decision of the Hon'ble Apex Court, in the case of Prethi Chand V/s State, reported in AIR 1989 SC 702, wherein it is held that, "A carbon copy of the Injury Report may be admitted as Primary Evidence, when it was prepared by a Doctor, by one uniform process, by which the original was prepared."
20.04.04. As per Sec.63 of the Indian Evidence Act, Secondary Evidence means and includes,
a) Certified copies of the documents as provided U/Sec.76 of Evidence Act;
b) Copies made from the original by mechanical process, which in themselves ensures the accuracy of 34 Crl.Appeal.No.25102/2021 the copy; including the copies compared with such copies;
c) Copies made from, or compared with, the original copy;
d) Counter parts of the documents, as against the parties who did not execute them;
e) Oral accounts of the contents of a document, given by some person, who himself has personally seen it.
Neither Tax Invoices -Ex.P11 to Ex.P14, nor Goods Consignment Notes-Ex.P15 to Ex.P18, come within the ambit of the above mentioned five categories of the documents, which come within Sec.63 of Indian Evidence Act, referred to supra.
20.04.05. Thus, the Tax Invoices marked at Ex.P11 to Ex.P14 and the Goods Consignment Notes marked at Ex.P15 to Ex.P18 forms the Primary Evidence, within the meaning of Explanation -2 to Sec.62 of the Indian Evidence Act, 1872. Thus, the said documents are Primary Evidence.
Accordingly, the contention taken up by the Learned Counsel for the Appellant that Ex.P11 to 35 Crl.Appeal.No.25102/2021 Ex.P18 are the Secondary Evidence, cannot stand to reason.
20.05. Coming to the second fold of contention taken up by the Learned Counsel for the Appellant that, since Tax Invoices marked at Ex.P11 to Ex.P14, are the computer generated electronic records, which are Secondary Evidence, within the meaning of Sec.63, said documents requires a certificate as required U/Sec.65-B. 20.05.01. As observes supra, the Tax Invoices
-Ex.P11 to Ex.P14, will not fall within five categories of the documents found in Sec.63 of Indian Evidence Act, but the said documents fall within Explanation - 2 to Sec.62, so those documents are not the Secondary Evidence, but the Primary Evidence. When the said documents are Primary Evidence, then filing of Certificate U/Sec.65- B of Indian Evidence Act, is not required.
Hence, the contention of the Learned Counsel for the Appellant is replied, accordingly.
36 Crl.Appeal.No.25102/202120.06. The third fold contention of the Learned Counsel for the Appellant is that, law mandates triplicate copy of Tax Invoices and the four copies, as made by the Complainant.
20.06.01. The Learned Counsel for the Appellant has produced the Extract of the provisions of Central Goods and Services Tax Rules, 2017, alongwith the Memo dtd.15.03.2021, before the Trial Court, which is found in the Trial Court, inbetween documents at Page No.89 to 92.
Rule 138(1) and 3 of the Central Goods and Services Tax Rules, 2017, reads as under:-
"138. Information to be furnished prior to commencement of movement of goods andgeneration of e-way bill.-
(1) Every registered person who causes movement of goods ofconsignment value exceeding fifty thousand rupees--
(i) in relation to a supply; or
(ii) for reasons other than supply; or
(iii) due to inward supply from an unregistered person, shall, before commencement of such movement, furnish information relating to the said goods as specified in Part A of FORM GST EWB-01, electronically, on the common portal along with such other information as may be required on the common portal and a 37 Crl.Appeal.No.25102/2021 unique number will be generated on the said portal:
Provided that the transporter, on an authorization received from the registered person, may furnish information in Part A of FORM GST EWB-01, electronically, on the common portal along with such other information as may be required on the common portal and a unique number will be generated on the said portal:
Provided further that where the goods to be transported are supplied through an e- commerce operator or a courier agency, on an authorization received from the consignor, the information in Part A of FORM GST EWB- 1 may be furnished by such e- commerce operator or courier agency and a unique number will be generated on the said portal:
Provided also that where goods are sent by a principal located in one State or Union territory to a job worker located in any other State or Union territory, the e-way bill shall be generated either by the principal or the job worker, if registered, irrespective of the value of the consignment:
Provided also that where handicraft goods are transported from one State or Union territory to another State or Union territory by a person who has been exempted from the requirement of obtaining registration under clauses (i) and (ii) of section 24, the e-way bill shall be generated by the said person irrespective of the value of the consignment.
(2) .........
(3) Where the e-way bill is not generated under sub-rule (2) and the goods are handed over to a transporter for 38 Crl.Appeal.No.25102/2021 transportation by road, the registered person shall furnish the information relating to the transporter on the common portal and the e-
way bill shall be generated by the transporter on the said portal on the basis of the information furnished by the registered person in Part A of FORM GST EWB-01:
Provided that the registered person or, the transporter may, at his option, generate and carry the e-way bill even if the value of the consignment is less than fifty thousand rupees:
Provided further that where the movement is caused by an unregistered person either in his own conveyance or a hired one or through a transporter, he or the transporter may, at their option, generate the e-way bill in FORM GST EWB-01 on the common portal in the manner specified in this rule:
Provided also that where the goods are transported for a distance of upto fifty kilometers within the State or Union territory from the place of business of the consignor to the place of business of the transporter for further transportation, the supplier or the recipient, or as the case may be, the transporter may not furnish the details of conveyance in Part B of FORM GST EWB-01."
Rule 48 of the Central Goods and Services Tax Rules, 2017, reads as under:-
"48. Manner of issuing invoice.-
1)The invoice shall be prepared in triplicate, in the case of supply of goods, in the following manner, namely,-
39 Crl.Appeal.No.25102/2021(a) the original copy being marked as ORIGINAL FOR RECIPIENT;
(b) the duplicate copy being marked as DUPLICATE FOR TRANSPORTER; and
(c) the triplicate copy being marked as TRIPLICATE FOR SUPPLIER.
(2) The invoice shall be prepared in duplicate, in the case of the supply of services, in the following manner, namely,-
(a) the original copy being marked as ORIGINAL FOR RECIPIENT; and
(b) the duplicate copy being marked as DUPLICATE FOR SUPPLIER.
(3) The serial number of invoices issued during a tax period shall be furnished electronically through the common portal in FORM GSTR-1.
20.06.02. On Close reading of the said Rules, made it clear that, there is minimum requirement of preparing the original copy into triplicate copies. But the said Rules never state that, their should not be morethan triplicate copies.
Thus, there is no bar prescribed under the provisions of the Central Goods and Services Tax Act and more specifically in the Central Goods and Services Tax Rules, 2017, for preparing four copies, instead of triplicate copies.
40 Crl.Appeal.No.25102/2021Thus, even this fold of contention taken up by the Learned Counsel for the Appellant, does not stand to reason.
20.07. I have carefully gone through the Judgment passed by the Trial Court, more specifically at Para No.14, wherein the Trial Court has opined that, there is no requirement of the Certificate for Ex.P11 to Ex.P14 - Tax Invoices, as required U/Sec.65- B of the Indian Evidence Act.
20.08. Thus, on the conjoint reading of Tax Invoices- Ex.P11 to Ex.P14 and Goods Consignment Notes -Ex.P15 to Ex.P18, it can be said that, the Complainant has shown that, it has supplied the goods to the Accused and Accused has received the said goods, as per the endorsement of the Accused found on the Good Consignment Notes-Ex.P15 to Ex.P18.
20.09. When it is suggested to PW1 on behalf of the Accused that, the Complainant has not supplied the goods to the Accused; and when the said suggestion is denied by PW.1, then it is for the 41 Crl.Appeal.No.25102/2021 Accused to prove that she has not received the goods, supplied by the Complainant as per the Goods Consignment Notes-Ex.P15 to Ex.P18.
But the Accused has neither brought any material on record during the course of cross- examination of PW.1, in this regard, nor has led any independent evidence to disbelieve the oral and documentary evidence led by the Complainant, more specifically, production of the Tax Invoices at Ex.P11 to Ex.P14 and Goods Consignment Notes-Ex.P15 to Ex.P18.
Thus, the Accused has failed to show that, the Complainant has not supplied the goods; or she has not received the goods sent by the Complainant under the Goods Consignment Notes-Ex.P15 to Ex.P18.
Hence, the second defence taken up by the Accused that, she has not received the goods, does not stand to the reason.
21. The third defence taken up by the Accused that, the Complainant Company has taken signed blank Cheques from her, as security. The said defence can be seen in the ocular evidence, more 42 Crl.Appeal.No.25102/2021 specifically, cross-examination of PW.1, at Page No.15 Para No.1, Line Nos.1 to 7, which reads as under:-
"..ಈ ಪ್ರಕರಣದಲ್ಲಿರುವ ನಿಪಿ-1 ರಿಂದ ನಿಪಿ-3 ಚೆಕ್ಕುಗಳನ್ನು ಸಹ ನಾವು ಭದ್ರತೆಗಾಗಿ ಆರೋಪಿಯಿಂದ ಪಡೆದಿರುತ್ತೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಮುಖ್ಯ ವಿಚಾರಣೆಯಲ್ಲಿ ಹೇಳಿದಂತೆ ನಮ್ಮ ಕಂಪನಿಯು ಆರೋಪಿ ಕಂಪನಿಗೆ ಮಾಲು ಪೂರೈಕೆ ಮಾಡಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಫಿರ್ಯಾದಿನಲ್ಲಿ ಹೇಳಿದಂತೆ ಮಾಲು ಪೂರೈಕೆ ಮಾಡದೇ ಇದ್ದರೂ ಸಹ ಭದ್ರತೆಗಾಗಿ ನೀಡಿದ ಖಾಲಿ ಸಹಿ ಮಾಡಿದ ಚೆಕ್ಕುಗಳನ್ನು ದುರುಪಯೋಗಪಡಿಸಿಕೊಂಡು ಈ ಸುಳ್ಳು ಫಿರ್ಯಾದನ್ನು ಸಲ್ಲಿಸಿದ್ದೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ...."
As per this evidence, a suggestion is made to PW.1 on behalf of the Accused that, the Complainant Company had taken signed blank Cheques from the Accused, as security. The said suggestion is denied by PW.1.
When the said suggestion is denied by PW.1, then it is for the Accused to prove the said fact that, she had issued singed blank Cheques to the Complainant, as security, either by bringing the materials on record during the course of cross- examination of PW.1, or by leading independent evidence, in this behalf.
The Accused has failed to show on the basis of preponderance of probabilities that, she had issued 43 Crl.Appeal.No.25102/2021 signed blank Cheques to the Complainant, as security.
Hence, I answer POINT NO.3 IN THE
NEGATIVE.
22. POINT NO.4:-
Though the Notice-Ex.P8 is served upon the Accused as per Postal AOD- Ex.P9, but the Accused has failed to reply the said Notice, contending that, she had issued the signed blank Cheques, as security; and she has not received the goods, from the Complainant Company. Hence, the defence of the Accused is pulpable and not probable, to rebut the presumption available to the Complainant U/Sec.139 of NI Act.
23. All these aspects have not been considered by the Trial Court, to arrive at a conclusion that, the Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of NI Act. Thus, the conclusion arrived by the Trial Court is not in accordance with law.
44 Crl.Appeal.No.25102/202124. Further, as per the materials placed on record, leads to conclude that, the Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of NI Act.
Hence, I answer POINT NO.4 IN THE
AFFIRMATIVE.
25. POINT NO.5:-
Under these circumstances, there is no any hurdle to derive the presumption available to the holder of the Cheques U/Sec.118 as well as U/Sec. 139 of N.I.Act. I find force to my above opinion as per the decision of the Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl. 166.
Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellant.
45 Crl.Appeal.No.25102/202126. Further 313 Statement is recorded by the Trial Court on 15.02.2020, it covers the entire incriminating substance, brought on record by way of evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement of the Accused recorded by the Trial Court U/Sec. 313 of Cr.P.C., and reply given by him, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
27. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357(1)(b) of Cr.P.C. I do not find any error or material irregularity in the said findings.
28. Further inorder to conclude, the Hon'ble High Court of Kerala has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478, in Paragraph No 8 thereof, that:
"Even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and 46 Crl.Appeal.No.25102/2021 quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the criminal liability under Section 138 of NI Act".
28.01. Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that;
"Once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by the Complainant. However, mere statement of the Accused may not be sufficient to rebut the said presumption".
29. In this case there was really presumption available infavour of the Complainant in terms of Section 138 & 139 of Negotiable Instruments Act, against the Accused has failed to discharged his burden, to rebut the said presumption.
30. The Trial Court has considered all the aspects, the grounds taken up by the Accused, as defence. The Order of the Trial Court in awarding 47 Crl.Appeal.No.25102/2021 compensation to the Complainant, is also well- reasoned.
31. When no fault is committed by the Trial Court, in coming to the conclusion, convicting the Accused for the offence punishable U/Sec 138 of NI Act, interference to that effect, by this Court does not arise at all.
32. Thus, I decline to interfere with the findings recorded by the Trial Court.
33. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the Accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act. The Accused is hereby directed to pay an amount of compensation, as ordered by the Trial Court.
Hence, for the above reasons I am constrained to answer POINT NO.5 IN THE NEGATIVE.
48 Crl.Appeal.No.25102/202134. POINT NO. 6:
For having answered Point Nos.1, 2 and 4 in the Affirmative; Point Nos.3, & 5 in the Negative, I proceed to pass the following:
ORDER IA No.1/2021 filed by the Appellant U/Sec.5 of Limitation Act, is hereby Allowed.
In the consequences, the delay of 2 months 4 days caused in preferring the Appeal, is hereby condoned.
Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.
In the consequences, the order of conviction passed by the Learned XIV ACMM, Bengaluru in C.C.No.56804 of 2019, dtd.09.04.2021, recording conviction of the Accused, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Trial Court shall execute its order, as per law.
49 Crl.Appeal.No.25102/2021No order as to costs.
In case, if the Appellant/Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.
Remit the TCR to the Trial Court, on obtaining necessary acknowledgment, from it, alongwith the copy of this Judgment.
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(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 9th of March, 2022.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)