Karnataka High Court
M/S Bayer Cropscience Limited vs M/S T V Traders on 8 December, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.352/2011
BETWEEN:
M/S. BAYER CROPSCIENCE LIMITED
FORMERLY KNOWN AS
BAYER CROPSCIENCE INDIA LIMITED
BAYER INDIA LIMITED
AVENTIS CROPSCIENCE INDIA LIMITED
AGREVO INDIA LIMITED
RHONE-POULNCEAGRO CHEMICALS INDIA LIMITED
HAVING ITS REGISTERED OFFICE AT
"BAYER HOUSE" HYRINDANI GARDNES
POWAI, MUMBAI - 400 093.
ALSO REGIONAL OFFICE AT
"SHRESHTA BUMI"
No.87, K.R. ROAD
No.206 AND 207, II FLOOR
BENGALURU - 560 004
REPRESENTED BY ITS BUSINESS MANAGER
MR. RAMESH IYER
P.A. HOLDER. ... APPELLANT
(By SRI. K. VISHWANATH, ADVOCATE - AMICUS CURIAE)
AND:
1. M/S. T.V. TRADERS
PARTNERSHIP FIRM
HAVING ITS OFFICE AT No. 275
KOTTAMPATTI ROAD
NATHNAM - 624 401
2
DINDIGUL DISTRICT
STATE OF TAMIL NADU
REPRESENTED BY ITS PARTNERS
AS BELOW.
2. MR. I. VAITHIALINGAM PILLAI
PARTNER
275, KOTTAMPATTI ROAD
NATHNAM 624 401
DINDIGUL DISTRICT
STATE OF TAMIL NADU
3. MR V. MUTHAIAH, PARTNER
275, KOTTAMPATTI ROAD
NATHNAM -624 401
DINDIGUL DISTRICT
STATE OF TAMIL NADU
ALSO OFFICES AT:
T.V.TRADERS
PARTNERSHIP FIRM, No.129/61
EAST MARKET STREET
II FLOOR MADURAI T.N.
T.V.TRADERS
PARTNERSHIP FIRM
C/O.T.VAITHIALINGAM PILLAI
& SONS, No.150, MADURAI ROAD
NATHNAM, KOVILPATTI,
DINDIGUL DISTRICT, T.N.
... RESPONDENTS
(RESPONDENTS ARE SERVED AND UNREPRESENTED)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(4)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 07.05.2010 PASSED BY THE ADDITIONAL SESSIONS
JUDGE AND PRESIDING OFFICER, FTC-III, MAYO HALL UNIT,
BENGALURU IN CRL.A.NO.25087/2009 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
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N.I.ACT AND CONFIRM THE JUDGMENT DATED 28.07.2009
PASSED BY THE V ADDL. JUDGE, COURT OF SMALL CAUSES AND
24TH ACMM., BANGALORE IN C.C.NO.26998/2006.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri K.Vishwanath, Amicus Curiae, appeared for the appellant. Though the respondents are served they have remained unrepresented.
2. This appeal is filed challenging the judgment of acquittal passed in Crl.A.No.25087/2009 dated 07.12.2010 on the file of the Additional Sessions Judge and Presiding Officer, Fast Track Court-III, Mayo Hall Unit, Bengaluru.
3. The parties are referred to as per their original rankings before the Trial Court as complainant and accused to avoid the confusion and for the convenience of the Court.
4. The factual matrix of the case is that the complainant is a Public Limited Company incorporated under the provisions of Companies Act. Accused No.1 is also a partnership concern duly represented by its partners accused Nos.2 and 3, 4 who were said to be in-charge and responsible for the conduct of the business. The accused were appointed as distributors to deal with the agro-chemical products, manufactured by the complainant company to operate around Madurai and Dindigul Districts of Tamilnadu. The complainant accepted the orders placed by accused No.1-firm and supplied agricultural pesticides. The complainant also raised invoices in the name of accused No.1 and the materials were delivered and acknowledged by the accused. But, the accused in spite of several repeated requests and demands, he failed to clear the dues.
5. It is the case of the complainant that the cheque to a tune of Rs.18,68,450/- issued by one of the partners of the firm i.e., accused No.3 with the consent of accused No.2 in discharge of outstanding legal debt had signed the cheque in question as the partner of the partnership firm with connivance and consent of accused No.2 who is also a partner and in-charge and responsible partner of accused No.1-firm. When the said cheque was presented by the complainant, the same was returned with an endorsement 'insufficient funds'. Hence, the complainant issued legal notice on all the three accused. Though the accused have replied the notice on 20.09.2005 admitting the liability, 5 they have failed to comply the demand. Hence, a complaint came to be filed by the complainant. The complainant in order to substantiate his claim examined its power of attorney as PW1 and got marked documents Exs.P1 to 44. The accused have not chosen to led any oral evidence but got marked document Ex.D1. The Trial Judge, after considering both oral and documentary evidence, convicted the accused and sentenced accused Nos.2 and 3 to undergo simple imprisonment for a period of one year and to pay fine amount of Rs.19,03,450/-. Being aggrieved by the judgment of conviction, the accused Nos.1 to 3 have preferred appeal and in the appeal the appellate court reversed the finding of the trial court by convicting the accused. Hence, the complainant has preferred this appeal.
6. The main grounds urged in the appeal are that the appellate Judge relying upon Ex.D1-Distributors Agreement particularly clauses 13 and 17, erred in understanding the said clauses properly has arrived at a wrong conclusion with regard to security deposit and credit limit, credit period 60 to 90 days as per the invoices holding that the material to the tune of Rs.18,68,450/- is not at all supplied above the credit facility. The appellate Judge failed to consider Exs.P18 to 44, the invoices 6 marked during the trial and has only concentrated and relied upon the document endorsed by the respondent - accused, which is on the other hand favouring the appellant. The said Ex.D1 clearly establishes the relationship between the appellant and the respondents. The accused have failed to explain as to why they have received and acknowledged the stocks as per the invoices despatched by the appellant without raising any dispute till date. Hence, the finding recorded by the appellate Court is erroneous. The appellate Judge failed to take note of the presumption under section 139 of N I Act and the accused have not discharged statutory burden leading any cogent evidence rebutting the case of the complainant. The appellate judge has committed an error in reversing the finding of the trial court. Hence, it requires interference of this court.
7. Sri.K.Vishwanath, learned counsel, who is appointed as amicus Curie to assist the court on behalf of the appellant, vehemently argued that the trial judge failed to appreciate both oral and documentary evidence with regard to the defence taken by the accused that the amount was paid and the trial court mainly relied upon Ex.D1 and comes to a conclusion that the period of repayment is only 60 to 90 days and it was alleged that 7 the transaction was of the year 2003 and the cheque was issued in the year 2005 and there is no explanation on the part of the complainant and hence it requires interference of this court.
8. Having heard the learned counsel appearing for the appellant and the respondents though served through counsel, did not choose to engage any counsel, the points that arise for consideration of this Court is:
(i) Whether the appellate Court has committed an error in reversing the finding of the trial Court?
(ii) What order?
9. Before considering the grounds urged in the appeal, it is appropriate to consider the evidence of the complainant. The complainant has filed a detailed affidavit reiterating the contents of the complaint and also got marked the documents Exs.P1 to
44. He was subjected to cross-examination. In the cross-examination, there is no dispute with regard to accused No.1 was appointed as a distributor. PW1-complainant admits that he has no knowledge regarding quantum of money got deposited as a security deposit while appointing the accused as distributors. It is suggested that they have collected six blank 8 cheques while appointing the accused as distributors and the said suggestion was denied. However, it is elicited that the word 'credit period' pleaded in paragraph-7 of the complaint means 60 to 90 days and the same is a business practise. He admits that he cannot say the particular date on which accused were liable to pay sum of Rs.18,68,450/-. It is also elicited that in the reply notice the accused have never admitted the liability. He also admits that he cannot say the last date of supply of material to the accused. He admits the liability including the cost of the material supplied to the accused, interest, conveyance charges of the Directors from Bengaluru to Madurai and meeting expenses. It is further elicited that he calculated interest on total cost of the material and he cannot say from which period interest was calculated. He admits that they are maintaining books regarding supplying of materials through distributors and in this case they have not produced books of accounts. It is suggested that the complainant being custodian of the cheques of the accused has misused the same and the same was denied. He admits that there is arbitration clause in the Distributors Agreement and they never referred the matter to the arbitration. He admits that the accused has made part payment with regard 9 to Ex.P18 to 24. But, he cannot say the quantum of money paid by the accused. It is elicited that the credit limit of the accused is approximately Rs.2 lakhs to Rs.5 lakhs. Till date, Distributors Agreement of the accused is not terminated. The complainant has already appointed new distributors to the area where the accused firm worked as a distributor. It is elicited that during July 2005 after a lengthy process/discussions, settling the outstanding amount through Courier the accused sent the disputed cheque to Bengaluru office of the complainant. No letter was accompanied with the cheque. Accused wrote the cheques and he does not know among accused Nos.2 and 3, who wrote the cheque and also does not know the contents and signature on the cheque are in different handwriting and different ink. It is suggested that no such cheque are sent through Courier and they have not produced the Courier cover. Further, he admits that there is no agreement between accused and the complainant.
10. Having perused both oral and documentary evidence available on record, no doubt, the accused did not choose to step into the witness box. The accused gave reply notice in terms of Ex.P17 dated 20.9.2005 and in Ex.P17 accused took 10 defence that six blank cheques were collected for the purpose of security and the same has been misused by the complainant and further stated in his reply letter that there was a balance of Rs.12,02,472.13 and after adjusting a sum of Rs.2,51,738.18, the accused was liable to pay a sum of Rs.9,50,733.95. The complainant has stopped the business transaction with the accused and only half of the said cheque amount alone was due to the complainant. It is contended that the complainant has committed forgery upon the said cheque for the purpose of cheating the accused and made use of the blank cheques.
11. On perusal of the reply notice, the accused also did not dispute the transaction between the complainant and the accused and in page two of the reply notice, the accused has categorically admitted that the complainant has sent balance confirmation letter dated 02.06.2005 stating that there was a balance of Rs.12,02,472.13 only to be paid by the accused to the complainant. Thereafter, the complainant's salesman of Theni- Dindigul Districts area by name Thiru. Jayachandran, in the presence of the Regional Manager of the complainant by the name Thiru.Muthu, has given an endorsement on 30.08.2005 by his own handwriting deducting Rs.2,51,738.18 from out of 11 Rs.12,02,472.13 and asserted that the accused has to pay a sum of Rs.9,50,733.95 only to the complainant. Having taken note of this admission, it is clear that the accused was due for a sum of Rs.9,50,733.95 and further in Page No.3 of paragraph-2 of the reply categorically have stated that they have admitted the fact that only half of the said cheque amount alone was payable by the accused. These two admissions are clear that the accused was liable to pay Rs.9,50,733.95. In the cross examination, though a question was put to PW.1 with regard to the aforesaid admission, he did not answer to the question of the learned counsel for the accused. But he answered that the cheque itself is the proof. Both the trial Court and the first appellate Court failed to take note of the reply given by the accused. The trial judge in the judgment, convicted the accused on the ground of presumption since the accused not disputed the signature in the cheque and it is observed that the complainant has successfully proved the guilt of the accused in respect of Ex.P2. On the other hand, the accused have not put forth any material in rebuttal under section 139 of N.I Act. The appellate court, no doubt, in detail discussed the evidence available on record and comes to a conclusion that the cheques which were 12 obtained earlier were misused and no doubt, has discussed in detail the evidence of PW.1 in the cross examination where he has categorically admitted that the cheque amount includes the supply of goods and also interest, conveyance charges of directors from Bengaluru to Madurai, meeting expenses and they have calculated the interest on the total cost of the material, but he cannot say the period from which they have calculated interest. It is also important to note that in the evidence of PW1 he categorically admitted that the credit limit is permitted to Rs.2 lakhs to 5 lakhs and also admitted that the complainant already appointed new distributors and in view of the reply, it is clear that the complainant have stopped the continuation of the distributorship of the accused. It is the contention of the complainant that the cheques were sent through Courier and no such courier cover was placed before the court and hence it is clear that the cheques which are in the custody of the complainant was misused. But the accused has admitted in the reply notice that after deducting amount of Rs.2,51,738.18, the balance payable by the accused is Rs.9,50,733.95, that was in the year 2005 and both the Courts failed to consider the admission of the accused and nothing is discussed in the 13 judgment of the appellate Court regarding reply notice. When there is an admission and the same need not be proved under Section 58 of the Evidence Act. Having taken note of the material available on record and also the admissions available in the reply notice as well as in the cross-examination PW1 has categorically admitted that the accused has made part payment, it is an appropriate case to allow the appeal in part taking note of the admission and to reverse the finding of the first appellate Court partly. No doubt, the first appellate Court has given several reasons for reversing the finding of the trial Court, but lost sight of the admission available in Ex.P17-reply notice given by the accused and reasonings are against the record and admissions. While imposing fine, this Court has to take note of admission to the extent of Rs.9,50,733.95 paise and the period of this litigation and award proportionate fine.
12. In view of the discussions made above, I pass the following:
ORDER
i) The appeal is allowed.
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ii) The impugned judgment and order of acquittal
passed in Crl.A.No.25087/2009 dated
07.12.2010 on the file of the Additional
Sessions Judge and Presiding Officer, Fast
Track Court-III, Mayo Hall Unit, Bengaluru. is hereby set aside. The accused are convicted for the offence punishable under Section 138 of the N.I. Act.
iii) Accused Nos.2 and 3 are directed to pay a fine amount of Rs.13,00,000/- to the complainant within eight weeks from today. In default to pay fine amount, the accused are directed to undergo sentence for a period of two years and the trial Court shall secure the said accused and subject them for sentence.
iv) Registry is directed to transmit the records to the Trial Court forthwith.
v) Registry is directed to pay fee of Rs.3,000/- to Sri K.Vishwanath, Amicus Curiae.
Sd/-
JUDGE TL