M/S Hydro Aluminum Extrusions Bldg ... vs Varshad Aluminum Products Pvt Ltd on 2 September, 2010

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Karnataka High Court

M/S Hydro Aluminum Extrusions Bldg ... vs Varshad Aluminum Products Pvt Ltd on 2 September, 2010

Bench: N.Ananda

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 02"') DAY OF SEPTEMBER 2OIO..___

BEFORE

THE HONBLE MRJUSTICE N.  fj7.1'  *' "

CRIMINAL APPEAL N0;7.59/2003  " ~ IE V

BETWEEN:

M/s. Hydro Aluminum Extrusions

Building Systems India Ltd. (HAEBSIL)

A Company incorporated under the 
Companies Act, 1956 and having E' _ _

its office at 736, Esiiwari In.dustria}~" ,  it
Estate, I-Iulimavu, Banergiiatta Rc_Iad,_ V 
Bangalore «- 560 071 Represented by  }
Sriﬂaresh Gaglani (Director) V  2

Now known as M/sjiydro A1'uini1fium*  _ E
Extrusions Buildi.11g« Systeniis India Pvt."  V'
Ltd. {the word pri_vatr:?i'i.e_1s been added  V "" it
Before the wordiiimited U/s.'43._A'~{2A)_ oi", ,
The Companies' iiﬁgfiiendnietit)  2000.  ...Appe1laI1t

{By Sri.  ,R'aghVav-ai'2.'  ~"

AND:

1. Var§3h'ad. Alumiminii Products

P1jt'.'HLtd_., Ax CoI7:;)é1:':3:.incorporated

.  A Under the Comp-cmies Act, 1956

»  haviitigits' o__fi'iee at Plot no.8

  'Mahat1na_«Gan:111]=: Street

~Thorapai:afm,Ci'1e{11'1a1 m-- 96.

V _2. S1'i1Laid?ishniina1i'aye1na

Direct/or'Varsi'1ad Aiuminum

._  xProduC'£s.Pvt. Lid.
~ Awai Shanmugam Salai
'  Royapettah, Chennai M 86.



3. Sri.S.Srikanth, Director
Director Varshad Aluminum
Products Pvt. Ltd, 16/ 1
First Street, South Gopalpurarn  ;
Chennai -- 86. ...Respondents*<.V

{By Sr1.S.GopaIakris1'1nan, Advocate} This appeai is filed under section 3m78{4] Cr.'P.'C-- set. aside. 0 the order dated 19.03.2003 passed by'the"XIi1'..AdditionaIVChief Metropolitan Magistrate. Bangalore in:-..0C};C.No.3O84'i['200:E;A acquitting the resporidenbaccused for. an offence pun«ishai2.1e under section 138 oI'N.I.Act. A. < 0 This appeal coming on fo'r"i'sfi:na1 hearéngethisitiday, the Court delivered the foliowingz -

J on G M-e7'N'_'1' The appeliani rueferredv' to as complainant) was the"choI£1}o}§1pi11aﬁA;"in'~C'.'C.No:3Ué47/2001, filed for an offence 138 of the Negotiable Instrumentsttii-Aci., V1889 0' {for short, 'the Act'), inter alia contending that re'sp.o_n_d.ents 1 to 3 arrayed as accused 1 to {;h'erei11.aft--er<..refc_1*red to as accused 1 to 3) had issued a §=.SJ.02.2001 for a sum of Rs.19,07,423A_a,, «towardsvaiue of raw material under invoices and delivery E N. &\.»~.sﬁ~'" 'r\ a challans as per Ex.P.5 to Ex.P.l2. On presentation of said cheque, it was dishonoured for want of funds. l l

2. On behalf of complainant, PW} & PW2 . and documents as per. Ex.P.l to E:ggj.§'.p27 were behalf of defence, accused No.3 was documents as per Ex.D.l to

3. The learned trial JudgeVill"'clismissed* complaint holding that complaint ..1_\_/'ll:/n's;.H_ydrol"Aluminium Extrusion Buildings Sysptemsg Lt~dl.;A'»~:whereas disputed cheque was l:3:v§:*l."Iv*i-,1--si.llndal Aluminium Extrusions has' held that PW1 did the proceedings. The learned that complainant not being drawee of cheque c.anno.t maintain the complaint. ' - {It seen f1"on1"i"ecords, after examination of accused l 313 Cr.P.C., accused I to 3 have prod.uCed_do:cpurnei1is as per Ex.D.l to Ex.D.6, from which it V' -. « ciwmwee gcould 'befseen mat the name of w» 1/i/r--

":.'lM./slindai Aluminiuni Extrusions Limited was changed to N. %)_,L..9.M:0...,, M/s.Hydro Aluminium Extrusions Building Systems hlndia Limited.

5. After production of documentary . 1 to 3, complainant made an application Cr.P.C., to establish that originally,' was M/s.IndaI Aiurniniurn.' subsequently it was changedllktolvl Aluminium Extrusions Building; _The learned trial Judge has dismissed the fl0.01.2003.

6. I see "v-----produced by the complainant. not only relied on dishoncauredlp' ' _ A it produced invoices and delivery zchpallans disputed cheque was issued to discvhargte lvegally Arecbsverable debt or liability. The ~.complain--anL». produced renewal of agreement dated :,fE;>é§P'--l..4] to show that M/s.Varshad Aluminium Products _PriAira;t:e I,iz'm'ted has renewed lease agreement in 'favour ';complainzmt --~ M/s.Hydro Aluminium Extrusions

9. The law is fairly well settled that unless '__all the incriminating circumstances appearing against accu:'sec;.._vare put to accused, they cannot be used in the learned trial Judge has refusedﬂman complainant to establish that there name of complainantconipany, vititholutp change in its constitution. triallduldgefihas failed to notice that the the "defence in particular Ex.DA.V'1 reveal the name of Limited.

incorporated ﬂsuhsequently changed to M/ Building Systems India Limitedand "for reversion of public limited company to"axpriyateiiimited company was filed. Thus, I find theidlearned u;ial"""'J'udge has violated the mandatory section 313 Cr.P.C. The learned trial Judge has application ﬁled under section 311 Cr.P.C., filed Egaylgthe complainant to remove the above anomalies.

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Karnataka High Court