Bangalore District Court
M/S Kalpatharu Distributors vs M/S Astrazeneca Pharma India on 14 January, 2016
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 14th DAY OF January 2016.
PRESENT
SRI.VIJAYAN.A., B.A.(LAW), LL.M.
LXVI Addl.City Civil & Sessions Judge
Crl.A.No.546/2015
APPELLANT 1. M/s Kalpatharu Distributors,
No.41, 6th Cross,
Shivaji Road,
Mysore-570 007.
Rep. by its Proprietor
Sri.K.Ganesh
2. K.Ganesh,
S/o D.Kariyappagowda,
Aged about 53 years,
Proprietor of
M/s Kalpatharu Distributors,
No.41, 6th Cross,
Shivaji Road,
Mysore-570 007.
(Rept. By Sri.Nagaraj.B.S, Adv.)
VS.
2 Crl.A.No.546/2015
RESPONDENT M/s Astrazeneca Pharma India
Ltd.
A Company incorporated under
the companies Act and having its
Registered Office at P.B.No:2483,
Off Bellary Road, Hebbal,
Bangalore.560 024.
Rep.by its authorized signatory
Mr.Vivek Shetty.
(Rept. By Sri.NJR, Adv.)
JUDGMENT
Appellant has preferred this appeal under Sec.374 of Cr.P.C. being aggrieved by order of conviction passed in CC.No.15352/2007 dated:13.3.2015 by the learned XXI ACMM, Bengaluru.
2. Brief facts of the appellant's case are that:-
The Appellant No.1 was appointed as an institutional stockist of the complainants products through an appointment letter dated: 26.6.2006. For the supplies made by the complainant appellant No.1 3 Crl.A.No.546/2015 had to make payments and towards the payment of the invoice accused had issued a cheque bearing No:383130 dated: 25.11.2006 for a sum of Rs.3,16,182/- drawn on City Union Bank Ltd., Mysore. But the said cheque was returned with an endorsement "funds insufficient". Inspite of issuance of legal notice appellant has not paid the cheque amount. Hence, complaint.
3. The learned magistrate was pleased to take cognizance and sworn statement of complainant was recorded and issued summons to the accused. Thereafter, the authorized signatory of complainant has examined as P.W.1 and got marked Ex.P.1 to P.18. The statement of accused under Sec. 313 of Cr.P.C. was recorded and accused examined himself as DW.1 and no documents were marked. The trial court after hearing the arguments on both sides passed the 4 Crl.A.No.546/2015 impugned judgment dated 13.3.2015 convicting the accused/appellant for the offence punishable under Sec.138 of N.I. Act and accused No.1 and 2 are sentenced to pay a fine of Rs.3,26,182/- and in default he shall undergo S.I. for a period of ten months.
4. Aggrieved by order of conviction and sentence the appellant herein has approached this court for the following among other grounds:-
a) The impugned judgment is perverse since the learned Trial Judge has erroneously come to conclusion at para 16 of the Judgment that the accused in his examination in chief clearly stated that the accused No.1 company is holding its account at City Un;ion Bank, Mysore and Ex.P.2 is the cheque belong to the accused No.1 company the said finding is clearly perverse without there being any material in that regard and contrary to the evidence of the accused.
b) The learned Trial Judge has erroneously come to a conclusion at Para 16 of the judgment that The DW1 in his cross examination clearly admits that the 5 Crl.A.No.546/2015 Prashanth was nominated by him to carry on the business of drugs since he had no required qualification to carry on the business of drugs. The DW.1 also admits that the licence was issued with a condition to carry on the business under the personal supervision of Sri.T.S.Prashanth." The learned Trial Judge has completely failed to demarcate between the Terms 'supervision' and 'authorisation'. Even for the sake of argument if it is assumed that T.S.Prashanth was authorized to carry on the business, the complainant ought to have arrayed T.S.Prashanth as an accused to the complaint.
c) The Accused except in MDCC Bank Mysore had no account in any other Bank at Mysore much less the City Union Bank, Mysore. The DW.1 has categorically stated the same in his evidence. But nothing has been elicited from DW.1 in his cross examination.
d) The Trial Court fails to appreciate that CW1 in his evidence has categorically admitted that the complainant has not produced any document to show that the accused had placed orders for the alleged supply of the goods. In the absence of the purchase 6 Crl.A.No.546/2015 order the complainant have drastically failed to establish that there was legally enforceable debt , that apart CW1 has admitted that Ex.P.2a does not belong to accused No.2 K.Ganesh. Inspite of the said clear admission the trial court has erroneously convicted the accused for the offence under Sec.138 of NI Act.
e) The learned Trial Judge erred in not appreciating that the complainant in his cross examination has categorically admitted that the
signature at Ex.P15 is not of the accused No.2. The same clearly establishes that the Accused had never authorized T.S.Prashanth, to run the business and for placing the order or for issuing the cheque.
f) The Trial court failed to infer from the facts of the case that there was clear collusion between the office bearers of the complainant and T.S.Prashanth.
In order to suppress the said collusion have filed the complaint only against the accused without arraying T.S.Prashanth as an accused.
g) accused not at all issued cheque to the complainant nor they have signed in it, nor they have authorized any one to issue or sign cheque on their 7 Crl.A.No.546/2015 behalf, provisions of Sec.138 not at all attracted. Complainant ought to have proceeded against the person who issued the cheque and who has signed in the cheque namely T.S.Prashanth.
h) The Trial Judge failed to appreciate the complainant has drastically failed to prove his case beyond all reasonable doubt by applying the touch stone of the ingredients of Sec.138 of NI Act.
i) The Trial Judge failed to appreciate the principle laid down in AIR 2013 SC 3210 and AIR 200 SC 954 and AIR 2010 SC 2596 and passed the impugned judgment against the appellant .
Hence, appellant prayed this court to set aside the judgment of conviction and sentence passed by XXI ACMM in CC:15352/2007 dated: 13.3.2015 and acquit the appellant in the interest of justice and equity.
5. Heard.
6. On the basis of case made out, following points arise for my determination:
1) Whether the impugned order is illegal arbitrary and requires interference by this Court ?8 Crl.A.No.546/2015
2) What Order?
7. My findings to the above points are:
1) In the Negative
2) As per final Order, for the following:
REASONS
8. POINT No.1: The complainant has filed this case against the accused for the offence punishable under Sec.138 of NI Act. During the course of trial Praveenkumar examined as PW1 and got marked documents Ex.P1 to P19. On the other hand accused examined himself as DW.1. Court after appreciating both oral and documentary evidence adduced and produced both the parties passed an order of conviction convicting the accused No.1 and 2 and sentenced them accordingly. Being aggrieved by judgment of conviction and sentence accused preferred this appeal for setting aside judgment of court 9 Crl.A.No.546/2015 below and allowing this appeal in the interest of justice and equity. This court being the appellate court is both court of fact as well as law. Hence, this court inclined to re appreciate evidence on record. Praveen Kumar examined himself as PW1 and by filing affidavit in lieu of examination in chief. In support of his case he produced and got marked Ex.P1 to P19.
9. Ex.P.1 the authorization letter issued by complainant company. Cheque in Ex.P.2 and signature of accused in Ex.P2(a). Two endorsements issued by Bank in Ex.P3 and P4. Notice in Ex.P5, Invoice in Ex.P.6, Delivery challan in Ex.P.7, Courier receipt in Ex.P8, Copy of the application of the accused dated: 23.6.2006 , Copy of list of documents, letter of appointment and letter issued by accused dated: 22.2.2007, these documents are produced and marked as Ex.P9 to P14. In cross examination of DW.1 Ex.P15 to P18 are marked.
10 Crl.A.No.546/2015
10. In his examination in chief he deposed that he is authorized person to lead evidence in the above matter and he is well aware of the facts and circumstances of the matter. Therefore, he is swearing this affidavit.
11. In his cross examination PW1 deposed that in the year 2006 one Rajanna was incharge of complainant company and he was looking after all transactions of the company. Accounts branch persons also doing the transactions. Further complainant admitted that in the year 2006 he was also working in the complainant company , in that year he was working as a territory business Manager in Maternal Health Care division, since he was incharge of Bangalore transaction, the accused company was not coming under his control. Now Rajanna is working in complainant company , he is not aware of transactions of accused. But before transacting with accused they had obtained all information about the proprietorship of accused company and also about authorized signatory accused No.2 11 Crl.A.No.546/2015 K.Ganesh who is the proprietor of accused No.1 Firm. He also admitted that before supplying goods to accused they were very familiar with signature of K.Ganesh for appointing of accused No.1 as institutional stockist of accused No.1 Firm and gave written request to their company. At the time of giving request letter before appointment of accused No.1 as distributor accused No.2 himself informed about the another address of Mysore shown in Ex.P.5. Hence, he is unable to remember as to whether they produced agreement took place between complainant and accused. He is unable to remember the date on which accused placed orders for supplying goods with respect to transaction in question in this case. He also clearly deposed that signature found in Ex.P8 is not of accused No.2. Witness volunteered and deposed that signature is one of Prashanth who is authorized representative of K.Ganesh. He denied the suggestion that Ex.P2 not belong to accused No.2. He also clearly admitted 12 Crl.A.No.546/2015 that signature found at Ex.P2(a) is not belonging to accused No.2. He voluntaries that the said signature is of one Prashanth who is authorized representative of K.Ganesh and he is ignorant that the cheque was presented after 5 ½ months.
12. Further deposed that copy of application of accused dated: 23.6.2006, copy of list of documents, letter of appointment and letter written by accused dated:
22.2.2007 are produced. The said documents marked as Ex.P.9 to P.15. Further deposed that Ex.P.12 belong to accused No.2. On 26.6.2006 they appointed accused as their authorised distributors and super stokist as per Ex.P.12. He denied several suggestions put by learned counsel for the accused.
13. On the other hand accused K.Ganesh examined himself as DW1. He deposed that on 26.6.2006 he has been appointed as wholesale stokist . He has not placed any orders for purchase of goods from complainant 13 Crl.A.No.546/2015 company. He has not having any account at City Union Bank in the name of Kalpatharu Distributors. But he has opened account in Central Co-operative Bank, Mysore in the name of Kalpatharu Distributors. That account has been opened in the name of Kalpatharu Distributors but not on his personal name. Signature shown in Ex.P2 not belonged to him. He did not receive any notice from the complainant. Ex.P.5 served on him. Thereafter complainant did not met him. They are not having any office at No.1384 , 4th Cross, Krishnamurthypuram, Mysore. But they are having office at Shivajinagar, No.41, 6th Cross, N.R.Mohalla, Mysore in which he had appointed Sri.Prashanth as salesman to lookafter the business. He used to fetch orders from medical stores. The said Prashanth worked in his Kalpatharu Distributors from 21.1.2006 for a period of one month. He has not informed about appointment of sales man to the complainant. 14 Crl.A.No.546/2015
14. In his cross examination he clearly deposed that for the sake of convenience the Kannada version of deposition taken as it is £Á£ÀÄ PÀ®àvÀgÀÄ r¹Öç§Æålgï£À ªÀiÁ°ÃPÀ JAzÀgÉ ¸Àj . £Á£ÀÄ zÀÆgÀÄzÁgÀgÀ PÀA¥À¤UÉ ¤¦12 gÀAvÉ ªÀÄ£À« ¸À°è¹ Institutional Stockist DV £ÉêÀÄPÀ ªÀiÁqÀĪÀAvÉ PÉÆÃjzÉÝ£ÀÄ JAzÀgÉ ¸Àj . ¤¦ 13 gÀ°è G¯ÉèÃT¹gÀĪÀ zÁR¯ÁwUÀ¼À£ÀÄß ¤¦ 12 gÉÆA¢UÉ ¸À°è¹zÉÝ£ÀÄ JAzÀgÉ ¸Àj ¸ÁQëUÉ £Á®ÄÌ zÁR¯ÁwAiÀÄ£ÀÄß vÉÆÃj¸À¯ÁV CªÀÅUÀ¼À£ÀÄß vÁªÀÅ ¤¦ 13 gÉÆA¢UÉ ¸À°è¹zÀ zÁR¯ÁwUÀ¼ÀÄ JAzÀÄ UÀÄgÀÄw¹zÀÄÝ CªÀÅUÀ¼À£ÀÄß ¤¦ 16 jAzÀ 19 gÀªÀgÀUÉ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. Whole Sale Drugs ªÀiÁgÁlPÁÌV ¤UÀ¢vÀ «zÁåºÀðvÉAiÀÄ CªÀ±ÀåPÀvÉ EvÀÄÛ JAzÀgÉ ¸Àj . £Á£ÀÄ BA ¥ÀzÀ«ÃzÀgÀ . £À£ÀUÉ ¤UÀ¢vÀ «zÁåºÀðvÉ E®èzÉà EzÀÄÝzÀjAzÀ ¥Àæ±ÁAvïgÀªÀgÀ£ÀÄß £Á£ÀÄ CºÀð ªÀåQÛ JAzÀÄ £ÉêÀÄPÀ ªÀiÁrzÉÝ£ÀÄ JAzÀgÉ ¸ÁQëAiÀÄÄ vÁvÁÌ°PÀªÁV £ÉêÀÄPÀ ªÀiÁrzÉÝ£ÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ . ¤¦ 18 ªÀÄvÀÄÛ 19 gÀ°è ¥Àæ±ÁAvïgÀªÀgÀ G¸ÀÄÛªÁjAiÀÄ°è OµÀzÀs ªÀiÁgÁl ªÀiÁqÀ¨ÉÃPÉAzÀÄ µÀgÀvÀÄÛ «¢ü¸À¯ÁVvÀÄÛ JAzÀgÉ ¸Àj . ¤¦ 2 gÀ°è ¥Àæ±ÁAvïgÀªÀgÀ ¸À» EzÉ JAzÀgÉ ¸Àp Kalpatharu Distributors ºÉ¸Àj£À°è £À£ÀߣÀÄß ºÉÆgÀvÀÄ ¥Àr¹ ¨ÉÃgÉ AiÀiÁgÀÆ SÁvÉ vÉgÉAiÀÄ®Ä ¸ÁzÀså«®è. 15 Crl.A.No.546/2015 ¥Àæ±ÁAvïgÀªÀgÀÄ £ÀªÀÄä ¸ÀA¸ÉÜAiÀÄ ¥ÀgÀªÁV purchase order ¸À°è¹zÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è . ¥Àæ±ÁAvïgÀªÀgÀÄ £ÀªÀÄä ¸ÀA¸ÀÜÉAiÀÄ ¥ÀgÀªÁV ¸À°è¹zÀÝ purchase order UÉ ¸ÀA§AzÀs¥ÀlÖAvÉ ¥Àæ±ÁÀAv'gÀªÀgÀÄ OµÀzÀUÀ¼À£ÀÄß ¹éÃPÀj¹ ¤¦ 2 gÀAvÉ ZÉPÀÌ£ÀÄß ¤ÃrzÁÝgÉ JAzÀgÉ ¸ÁQëAiÀÄÄ D jÃw AiÀiÁªÀÅzÉà C¢üPÁgÀªÀ£ÀÄß ¥Àæ±ÁAvïgÀªÀjUÉ ¤ÃrgÀĪÀÅ¢®è JAzÀÄ ºÉüÀÄvÁÛgÉ . zÀÆgÀÄzÁgÀgÀÄ ¸ÀA¸ÀÜÉUÉ D jÃwAiÀÄ C¢üPÁgÀ ¤Ãr®è JA§ «µÀAiÀĪÀ£ÀÄß EzÀĪÀgÉUÀÆ °TvÀ gÀÆ¥ÀzÀ°è w½¹®è .
15. On anyalysing both cases of complainant and accused it is clear that T.S.Prashanth being competent person to get licence the proprietor Ganesh has registered his Pharmatical Kalpatharu Distributors in the name of Prashanth because for distribution of Pharmaceutical products required qualification is essential. Ex.P.15 the document written to complainant M/s Astra Zenica Pharma Ltd. has been executed by both T.S.Prashanth as well as K.Ganesh as follows:
" With reference to the discussion the undersigned had with your company representatives 16 Crl.A.No.546/2015 Mr.Gagandeep Singh, Mr.Khekre, Mr.Rajarshi Bhattacharya and Mr.Rajanna, on 21.2.2007 at your corporate office, Bangalore regarding pending outstanding amount of Rs.22,67,227. It was jointly agreed that out of this amount, goods worth Rs.11,47,678 has been replaced to GMSD at there various ware houses and acknowledgements from the GMSD has been duly obtained and submitted to your kindness. Another Rs.3,32,152 worth of stocks for which acknowledgment from GMSD is pending from 4 district ware houses is pending to be handed over to ourselves.
I assure you that the remaining balance of Rs.11,19,549 remains the legitimate due from M/s Kalpatharu Distributors to your company. The aforesaid amount will be repaid to the company by way of 5 demand drafts of the below said values at the mentioned dates.
1) 30th March 2007 Rs.2,00,000.00
2) 29th April 2007 Rs.1,50,000.00
3) 25th May 2007 Rs.2,50,000.00
4) 28th June 2007 Rs.2,50,000.00
5) 30th July 2007 Rs.2,69,549.00
Total: Rs.11,19,549.00
17 Crl.A.No.546/2015
16. Further case of complainant supported by Ex.P16 Form VAT NIF has been given in the name of Sri.K.Ganesh , Proprietor, M/s Kalpatharu Distributors whose principal place of business is situated at No.41, 6th Cross, Shivaji Road, N.R.Mohalla, Mysore and Ex.P.18 licence in Form No.20-B also issued in the name of K.Ganesh, proprietor of M/s Kalpatharu Distributors in which Sri.T.S.Prashanth shown as competent person. Hence, in view of Ex.P.15 and documents Ex.P.16, P.17, P.18 it is crystal clear that both T.S.Prashanth as well as K.Ganesh have executed Ex.P.15 in favour of complainant. The accused No.2 being proprietor and T.S.Prashanth being sales man as well as competent person in whose name licence has been obtained for Kalpatharu Distributors, complainant has got every right to proceed against accused No.1 18 Crl.A.No.546/2015 and 2 for issuance of cheque in the name of Kalpatharu Distributors, because Kalpatharu Distributors is the licenced entity and T.S.Prashanth who is signatory to Ex.P.2 has acted only on behalf of principal K.Ganesh.
Case laws produced by the appellant also not applicable to the appellant case because that case arose out of husband and wife relationship and company matters.
But this case arose where accused No.2 being sole Proprietor of Kalpatharu Distributors and T.S.Prashanth who acted on the direction of Proprietor by issuing cheque to the complainant by virtue of Ex.P.15 T.S.Prashanth as well as Ganesh are liable, since Prashanth is only sales man Ganesh is the sole proprietor the complainant proceeded against Ganesh only is justified under law. Under these circumstances, this court find no reasonable ground to interfere in to the judgment of conviction and sentence passed by the 19 Crl.A.No.546/2015 Trial Court. Accordingly, this court hold Point No.1 in the Negative.
17. POINT No:2 In view of my finding to the point No.1 and for reasons discussed above, I proceed to pass following ORDER The Criminal Appeal filed by the appellant under Sec.374 Cr.P.C. is hereby dismissed. Order of conviction and sentence passed by XXI Addl.CMM, Bengaluru in CC.No:15352/2007 dated:
13.3.2015 is hereby confirmed.
Send LCR along with the copy of this order forthwith to the trial court.
(Dictated to the Judgment writer on Computer, corrected by me and pronounced by me in the open court on this 14th day of January 2016) (A.VIJAYAN), LXVI Addl.CC & SJ, Bangalore.