Bangalore District Court
Bangalore International Airport Ltd vs Kingfisher Airlines Ltd on 16 December, 2024
KABC0B0072972018
IN THE COURT OF THE XVII ADDL. JUDGE, COURT OF
SMALL CAUSES & ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
(SCCH-21).
PRESENT: VIJAYAKUMAR S. HIREMATH
LL.B.,
XVII ADDL. JUDGE, Court of Small
Causes & ACJM, Bengaluru.
Dated: This the 16th Day of December-2024
C.C. No.55657/2015
Complainant/s : Bangalore International Airport Limited
Bangalore International Airport
Devanahalli, Bangalore-560300
Represented by its senior manager legal
Sri Akshay R Apte
(By Sri. Manu Kulkarni, Adv.,)
V/s.
Accused/s : 1. Kingfisher Airlines Limited
UB tower, Level 12, UB city, 24,
Vittal Mallaya road,
Bangalore-560001, Karnataka.
Represented by its Managing Director
Dr. Vijay Mallya.
(Accused No.1 is represented by the
official liquidator)
2. Dr. Vijay Mallya
Managing Director,
SCCH-21 2 C.C. No.55657/2015
Kingfisher Airlines Limited
UB tower, Level 12, UB city, 24,
Vittal Mallaya road,
Bangalore-560001, Karnataka
R/at: 6, Bulkley venue, Sausalito
California 94965,
United states of America.
(Case against accused No.2 is split-up
and separate criminal Case i.e., CC.
No.15101/2019 is registered against
him)
3. Sri A Raghunathan
Chief Financial Officer,
Kingfisher Airlines Limited
UB tower, Level 12, UB city, 24,
Vittal Mallaya road,
Bangalore-560001, Karnataka
(By Sri. B Vachan, Adv.,)
4. Sri Sanjay Agarwal
Chief Executive Officer
Kingfished house, Western Express
highway, Vile parle (E), Mumbai-400099
(Case against accused No.4 is split-up
and separate criminal Case i.e., CC. No.
15101/2019 is registered against him)
5. Sri Ayanni Kurrussi Ravindranath
Nedungadi, (Abated)
Director, Kingfisher Airlines Limited
UB tower, Level 12, UB city, 24,
Vittal Mallaya road,
Bangalore-560001, Karnataka
R/at: Flat No.103, Delphi-III, Prestige
Acropolis, 20 Hosur road, Bangalore-
560029, Karnataka.
(Reported as dead on 29.01.2022)
(By Sri. R Shivcharan, Adv.,)
SCCH-21 3 C.C. No.55657/2015
6. Sri Subhash Gupte, Director
Kingfisher Airlines Limited
UB tower, Level 12, UB city, 24,
Vittal Mallaya road,
Bangalore-560001, Karnataka.
R/at: Sarojini, 4 Golflinks,
Union park, Khar,
Mumbai 400052, Maharashtra.
(By Sri. Karthikeyan B S, Adv.,)
7. Sri Manmohan Singh Kapur, (Abated)
Director, Kingfisher Airlines Limited
UB tower, Level 12, UB city, 24,
Vittal Mallaya road,
Bangalore-560001, Karnataka
R/at: Klasse/1/401
Eldeco Utopia, Express way,
Noida 201304, Uttar Pradesh.
(Reported as dead on 15.11.2020)
(By Sri. R.Shivcharan, Adv.,)
8. Sri Bharath Raghavan, Secretary
Kingfisher Airlines Limited
UB tower, Level 12, UB city, 24,
Vittal Mallaya road,
Bangalore-560001, Karnataka
R/at: 2/5, Vivekanand Society
T H Katavia Marg,
Next to the post office, Mahin (West)
Mumbai 400015, Maharashtra.
(By Sri. R.Shivcharan, Adv.,)
9. Rekha A R
Regional Manager Accounts
Kingfisher Airlines Limited,
No.35/2, Cunningham road,
Opp. To Canara bank,
Bangalore-560052.
SCCH-21 4 C.C. No.55657/2015
(Case against accused No.9 is split-up
and separate criminal Case i.e., CC. No.
15101/2019 is registered against her)
JUDGMENT
The present complaint is filed by the complainant against the accused person No.1 to 9 for the offence punishable U/Sec.138 of N. I. Act.
2. The brief summary of the complainant's case is that:
It is the case of the complainant that it is a Company incorporated under the Companies Act 1956 and accused No.1 i.e, Kingfisher Airlines Limited was an Airline Company operating across the globe. Accused No.2 is the Managing Director of the Company, accused No.3 is the Chief Financial Officer of the Company, accused No.4 is the Chief Executive Officer of the Company, accused No.5 to 7 are the Directors and full time Directors of the Company, accused No.8 is the Secretary of the Company and accused No.9 is the Signatory to the cheques.
Accused No.2 being the Managing Director of the Company is liable for the dishonour of the cheques as contemplated U/Sec 141 of the N. I. Act as he has not exercised any due diligence to prevent the commission of the offence and it is trite law that the Managing Director is liable for the day to day activities of the Company. Accused No.3 is the Chief Financial Officer of the Company and is responsible for all the Financial dealings of the Company, accused No.4 is the Chief Executive Officer of the Company and is responsible for all the day to day activities of the Company and plays an SCCH-21 5 C.C. No.55657/2015 important role in the management and affairs of the Company, accused No.5 to 7 are the Directors and full time Directors of the Company and is responsible for day to day affairs of the Company at the time when the offence under the act was committed, accused No.8 is the secretary of the Company and is responsible for day to day affairs of the Company and accused No.9 has signed the cheques and has the knowledge of the commission of the offence. Hence the accused No.1 being a de-jure entity is operated on the instructions of accused No.2 to 8 and accused No.9 being the signatory of accused No.1 and has signed the cheques and she has not exercised any diligence on her part to prevent the commission of the offence.
It is further averred that, complainant was providing the accused various services, including but not limited to aviation services for the various Aircrafts owned, nominated or operated by the accused, landing and parking, aero-bridge and also in respect of air transport and cargo services of the accused. In accordance with Rule 86 of the Aircrafts Rules 1937 the complainant was permitted to charge the accused for services such as landing and parking in accordance with the tariff of charges which has been published by the complainant and notified in the form of Schedule of Airport Charges and payment policy and in addition to this, the accused no. 1 has an agent of the complainant was authorized to collect Passenger Services Fee(PSF) and User Development Fee(UDF) from the passengers for and on behalf of the complainant. As such the accused no.1 collected the PSF and UDF from the passengers, but after the period of SCCH-21 6 C.C. No.55657/2015 time, the accused no. 1 defaulted in making payments of the PSF and UDF and service charges to the complainant and became due and liable to pay a sum of Rs.58,40,02,893.64/- to the complainant as on 23rd February 2012. As such the accused towards the discharge of the part payment of the legally enforceable debt has issued 8 cheques for Rs.50,00,000/- each of Axis bank, Bangalore bearing No.263372, 263373, 263387, 263388, 263426, 263427, 263430 and 263431 dated 09-02-2012, 11-02-2012, 13-02- 2012, 15-02-2012, 17-02-2012, 19-02-2012, 21-02-2012 and 23-02-2012 respectively a total sum of Rs.4,00,00,000/-. Thereafter complainant presented the cheques for encashment through its banker ICICI Bank, M G road branch, Bangalore on various dates between 9th February 2012 to 23rd February 2012 but the said cheques were dishonoured for the reason Funds Insufficient. In this regard the complainant got issued a legal notice on 30-03-2012 to the accused no.1 calling upon to clear the outstanding dues within 15 days of receipt of legal notice, inspite of it accused No.3 requested the complainant to represent the cheques and assured to make arrangements to honour the cheques. Hence the complainant represented the aforesaid cheques for encashment on 03-04-2012, but again the said cheques were dishonoured for the reason "Payment stopped by drawer'' on 10-04-2012. Thereafter the complainant got issued a legal notice on 16-04-2012 to the accused calling upon to clear the outstanding dues within 15 days of receipt of legal notice and was serviced to accused No.1 on 19-04-2012. Inspite of it accused has not paid the amount nor replied to the same. Hence constrained by the same the complainant has filed the SCCH-21 7 C.C. No.55657/2015 present complaint against the accused for the offence U/Sec.138 of N. I. Act.
3. On filing of the complaint cognizance was taken for the offence punishable under Section 138 of N.I. Act and sworn statement was recorded and as there was sufficient ground to proceed further, a criminal case has been registered against the accused No.1 to 9 and summons were issued against them. The accused No.1 is represented by the official liquidator, accused No.3, 5, 6 and 8 appear before this Court and enlarged on bail. During the course of trial accused No.5 and 7 reported as dead on 29.01.2022 and 15.11.2020. Case against accused no.2,4 and 9 split up. The substance of accusation is read over to the accused No.3,5,6,7,8. Accused persons have pleaded not guilty and claimed to be tried.
4. The Complainant Company has examined its Finance and Accounts Manager as PW.1 and got marked Ex.P.1 to P.305. Further the Assistant General Manager of the complainant Company is examined as PW.2 and he has produced documents marked at Ex.P306 to 310. The incriminating evidence arising against the accused No.3, 5 and 6 to 8 in 313 statement of the accused is recorded along with their answers.
5. Per contra, accused No.3 i.e., the retired Chartered Accountant of the MC Dowel Company is examined himself as DW.1 and got marked 11 documents which were marked as Ex.D.1 to D.11.
SCCH-21 8 C.C. No.55657/20156. Heard by both sides.
7. Learned counsel for both the parties filed written arguments.
The learned counsel for complainant filed the list of following citations;
1. (2015) 8 SCC 28 between Krishna Texport and Capital Markets Limited Vs. Ila A. Agarwal & Ors.,
2. (2007) 6 SCC 555 between C. C. Alavi Haji Vs. Palapetty Muhammed & Anr.,
3. (2013) 1 SCC 177 between MSR Leathers Vs. S Palaniappan and another.
4. 2016 SCC Online Bom.2611 between Indorama Synthetics (I) Ltd., Nagpur Vs. State of Maharashtra and others.
5. (2012) 5 SCC 661, Aneeta Hada Vs. Godfather Travels and Tours Private Limited and others.
6. 2012 SCC Online Del 3350 between Ranjit Tiwari Vs. Narender Nayyar.
7. 1999 SCC Online Del 269 between Jain Associates Vs. Deepak Chaudhary & Co.,
8. (1998) 1 SCC 687 between Associated Cement Co. Ltd., Vs. Keshvanand.
9. 2012 SCC Online Kar 8789 between Cheminova India Limited Vs. Jajee Pesticides.
The learned counsel for accused No.3 filed the following list of citations;
1. 2020 LiveLaw (SC) 622 between Ashok Shewakramani & Ors., Vs. State of Andhra Pradesh & Anr.
2. (2020) 15 SCC 348 between Anss Rajashekar Vs. Augustus Jeba Ananth.
SCCH-21 9 C.C. No.55657/2015The learned counsel for accused No.6 & 8 filed the following list of citations;
1. (2005) 8 SCC 89 reported in S M S Pharmaceuticals Ltd., Vs. Neeta Bhalla and another.
2. 2015 SCC Online Bom 6758 between Dhananjay Datar & others Vs. The State of Maharashtra and another.
3. (2022) 10 SCC 152 between Sunita Palita and others Vs. Panchami Stone Quarry.
4. 2022 SCC Online 579 between Dilip Hariramani Vs. Bank of Baroda.
8. The following points that arise for my consideration are:
1. Whether the complainant proves accused have committed an offence punishable under Section 138 of N.I. Act 1881?
2. What order?
9. My answer to the above points is as follows:
Point No.1 : In the Affirmative,
Point No.2 : As per final order for
the following:
REASONS
10. POINT No.1: I am of the opinion that, I need not repeat the entire case of the complainant here also, since I have already narrated the same at the inception of this Judgment.
SCCH-21 10 C.C. No.55657/201511. In order to constitute an offence under Section 138 of N. I. Act, the cheque shall be presented to the bank within a period of 3 months from its date. On its dishonor, the drawer or holder of the cheque as the case may be shall cause demand notice within 30 days from the date of dishonor, demanding to repay within 15 days from the date of service of the notice. If the drawer of the cheque fails to repay the amount mentioned in the cheque within 15 days from the date of service of the notice, the cause of action arises for filing the complaint.
12. Section 138 of the N. I. Act has three essential ingredients viz; Firstly, that there is legally enforceable debt. Secondly, that the cheque was drawn from account of bank for discharge in whole or in part any debt or other liability which presupposes a legally enforceable debt. Thirdly, cheque so issued has been dishonoured. Fundamental burden is on complainant to prove existence of legally enforceable debt and only if it is so proved, only then presumption available under law i.e., under Sections 118 and 139 of N. I. Act, automatically comes into play.
13. Under the scheme of the act, the onus is upon the accused to rebut the presumptions, which are in favour of the complainant by raising a probable defence.
14. The sworn statement of the complainant filed by way of affidavit is considered as the evidence of the complainant. In his affidavit, he has testified regarding the non payment of PSF and UDF charges to the complainant, issuance of cheque, issuance of demand notice and also SCCH-21 11 C.C. No.55657/2015 failure of the accused to pay the cheque amount. The complainant has produced document of board resolution at Ex.P.1, authorization letter at Ex.P.2, cheques for a sum of for Rs.4,00,00,000/- bearing No.263372, 263373, 263387, 263388, 263426, 263427, 263430 and 263431 dated 09-02- 2012, 11-02-2012, 13-02-2012, 15-02-2012, 17-02-2012, 19-02-2012, 21-02-2012 and 23-02-2012 respectively alleged to be issued by the accused at Ex.P.3 to 10, Ex.P.11 to 18 are the endorsements issued by the bank stating dishonor of Ex.P.3 to 10 cheques and it shows that the said cheques were dishonored for the reason 'Payment stopped by drawer'. Ex.P.19 is the government circular, Ex.P.20 is the letter dated 16-04-2012, Ex.P.21 is the office copy of the legal notice, Ex.P.22 is the letter dated 30-03-2012, Ex.P.23 is the document of minutes of proceedings, Ex.P.24 is the document of payment of policy, Ex.P.25 is the schedule of airport charges from 25-04-2008, Ex.P.26 to 293 are the airline invoice numbers, Ex.P.294 is the E-mail dated 24-03- 2012 along with letter, Ex.P.295 is the E-mail communications between Kingfisher Airlines Ltd., and Bengaluru International Airports containing page No.1 to 62 and Ex.P.296 is the certificate U/Sec.65(b) of Indian Evidence Act.
15. In this case on perusal of documents produced by the complainant, Ex.P.3 to 10 are the Cheques dated 09-02-2012, 11-02-2012, 13-02-2012, 15-02-2012, 17-02- 2012, 19-02-2012, 21-02-2012 and 23-02-2012, Ex.P.11 to 18 shows that cheques in question were dishonored on 10- 04-2012, it appears that the cheques were presented within three months from the date of issuance of cheque. The notice SCCH-21 12 C.C. No.55657/2015 is issued within the statutory period of time as per Ex.P.19 on 16-04-2012 and notice issued to the accused was served on 19-04-2012 as per Ex.P.310 postal acknowledgment. The complainant has filed this complaint after delay of 166 days which has been already condoned as per order dated : 06-11- 2015.
16. On perusal of statement recorded under S.313 of Cr.P.C accused no.3 wherein he deposed that, Company has issued cheques of accused No.1 company only for the security purpose. Further contesting accused have not suggested to the PW-1 or PW-2 that accused company has not issued cheques in question. Having gone through the defence raised by the accused, they are not disputing that cheque in question not belongs to accused No.1. Further It is well settled that, when once the issuance of the cheque and signature is admitted, the presumption as contemplated U/s 139 of N. I. Act has to be raised infavour of the complainant. The course open to the accused is to rebut the said presumption by raising a probable defence. In this context of matter, it is useful to refer the decision of the Hon'ble Apex Court in APS FOREX SERVICES PRIVATE LTD., V/S SHAKTHI INTERNATIONAL FASHION LINKERS AND OTHERS reported in AIR 2020 Supreme Court 945, wherein, it has been observed and held that once the issuance and the signature of the cheque/s is admitted, there is always presumption infavour of complainant that there exists legally enforceable debt or liability.
17. It is also profitable to refer another decision of the Hon'ble Apex Court in P.RASIYA V/S ABDUL NAZEER AND SCCH-21 13 C.C. No.55657/2015 ANOTHER reported in 2022 SCC Online Supreme Court 1131, wherein, it has been observed and held that once the initial burden is discharged by the complainant, that the cheque was issued by the accused and signature of the accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge or any debt or other liability.
18. Learned Counsel for complainant argued that, accused No.1 company owed a legally enforceable debt of Rs.59,28,55,410.46/- as on 23.02.2012 to the complainant Airport for services of landing housing and parking of Aircraft availed by the Accused No.1 Company and for Passenger Service Fee ("PSF") and User Development Fee ("UDF") collected by accused on behalf of the complainant Airport as per Rules 88 and 89 of the Aircraft Rules, 1937. As such the accused towards the discharge of the part payment of the legally enforceable debt has issued 8 cheques for Rs.50,00,000/- each but same are dishonour. Hence accused no.1 being Company, Accused no.3 being Chife Financial Officer, accused 6 and 8 being director of accused no.1 Company committed the offence punishable U/s.138 of NI Act.
19. In support of his case the learned counsel for complainant relied upon the Judgment of Hon'ble Apex Court reported in (2015) 8 SCC 28 between Krishna Textport and Capital Markets Ltd., and ILLA Agarwal and others, wherein an observation is made that, Section 138 does not admit of any SCCH-21 14 C.C. No.55657/2015 necessity or scope for reading into it, the requirement that the Directors of the Company in question must also be issued individual notices under Section 138.
Further, learned counsel for complainant also relied upon the Judgment of Hon'ble Apex Court reported in (2007) 6 SCC 555 between C. C. Alavi Haji Vs. Palapetty Muhammed & Anr., wherein an observation is made that, Section 27 of the 1897 Act gives rise to a presumption that, service of notice has been effected when it is sent to the correct address by registered post.
Further, learned counsel for complainant also relied upon the Judgment of Hon'ble High Court of Delhi reported in 1999 SCC Online Del 269 between Jain Associates Vs. Deepak Chaudhary & Co., wherein an observation is made that, Section 141 of the Act is a deeming provision holding every person who was incharge of and was reasonable to the company for the conduct of the business of the company or partnership firm as well as the firm shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Further, learned counsel for complainant also relied upon the Judgment of Hon'ble Apex Court reported in (2013) 1 SCC 177 between MSR Leathers Vs. S Palaniappan and another wherein an observation is made that, the prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instrument Act.
SCCH-21 15 C.C. No.55657/2015Further, learned counsel for complainant also relied upon the Judgment of Hon'ble Apex Court reported in (1998) 1 SCC 687 between Associated Cement Co. Ltd., Vs. Keshvanand, wherein an observation is made that, no Magistrate shall insist that, the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the Company till the end of the proceedings.
Further, learned counsel for complainant also relied upon the Judgment of Hon'ble High Court of Karnataka reported in 2012 SCC Online Kar 8789 (ILR 2013 KAR 5395) between Cheminova India Limited Vs. Jajee Pesticides, wherein Hon'ble High Court of Karnataka followed the decision of Hon'ble Apex Court reported in (1998) 1 SCC 687 between Associated Cement Co. Ltd., Vs. Keshvanand.
Further, learned counsel for complainant also relied upon the Judgment of Hon'ble Apex Court reported in 2012 SCC Online Del 3350 between Ranjit Tiwari Vs. Narender Nayyar, wherein an observation is made that, when the offence is committed by the juristic person and if the drawer of the cheque happens to be a juristic person like a body corporate, it can be prosecuted for the offence punishable under Section 138 of the Act. The principal offender in each cases is only the body corporate and it is a juristic person and when the company is the drawer of the cheque, such company is the principal offender and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per Section 141.
Further, learned counsel for complainant also relied upon the Judgment of Hon'ble Apex Court reported in 2016 SCC Online Bom.2611 between Indorama Synthetics (I) Ltd., SCCH-21 16 C.C. No.55657/2015 Nagpur Vs. State of Maharashtra and others, wherein an observation is made that, the expression 'suit or other proceedings' in Section 446 (1) of Companies Act 1956, does not include Criminal complaints filed u/s 138 of N. I. Act.
Further, learned counsel for complainant also relied upon the Judgment of Hon'ble Apex Court reported in (2012) 5 SCC 661, Aneeta Hada Vs. Godfather Travels and Tours Private Limited and others, wherein an observation is made that, the company can have criminal liability and further, if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. In this backdrop, Section 141 of the Act has to be understood. The said provision clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under section 138. Thus, the statutory intendment is absolutely plain. As is perceptible, the provision makes the functionaries and the companies to be liable and that is by deeming fiction. A deeming fiction has its own signification.
20. On the other hand learned Counsel for contesting accused argued that Accused No.3 being Chief Financial Officer of the accused No.1 Company and accused No. 6 and 8 being the directors of the A-1 Company is not responsible for the day to day affairs of the Company and that they are not responsible for the conduct of the business of the Company. Statutory notice issued to the accused No.1 is duly not served. Complainant has not issued separate notice to the accused No.3, 6 and 8. Ex.P.22 i.e., notice is not issued SCCH-21 17 C.C. No.55657/2015 in compliance of Sec.93 and 94 of N. I. Act. Notice issued in contravention of Sec.138 (b) of the N. I. Act.
21. Accused No.3 i.e., the retired Chartered Accountant of the MC Dowel Company is examined himself as DW.1 and got marked 11 documents which were marked as Ex.D.1 to D.11. In his evidence he claimed that, he is nowhere connected to the day affairs of the accused No.1 Company and he was not a decision maker or part of the Management Team. Further he also contended that, he was only to act as per the instructions of his MD. Further he also taken defence that, Income Tax Department, Bangalore has filed case against him before the Special Economic Court, Bangalore for the recovery of Companies due and in the said case, Court has discharged him from the alleged offences.
22. The learned counsel for accused No.6 & 8 relied upon the decision reported in (2005) 8 SCC 89 reported in S M S Pharmaceuticals Ltd., Vs. Neeta Bhalla and another, wherein Hon'ble Apex Court held that, "In order to bring a case within Section 141 of the Act the complaint must disclose the necessary facts which make a person liable. It is necessary to specifically aver in a complaint that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the Company."
The learned counsel for accused No.6 & 8 relied upon the decision reported in 2015 SCC Online Bom 6758 between Dhananjay Datar & others Vs. The State of Maharashtra and another, wherein Honble High Court of SCCH-21 18 C.C. No.55657/2015 Bombay held that, "It is also to be noted that Sub Section (2) of Section 141 is a deeming provision and would be attracted only if it is averred and proved that the offence has been committed with consent or connivance of or is attributable to any neglect on the part of those persons."
The learned counsel for accused No.6 & 8 relied upon the decision reported in (2022) 10 SCC 152 between Sunita Palita and others Vs. Panchami Stone Quarry, wherein it is held that, "What is required is that the persons who are sought to be made criminally liable under section 141 should be, at the time the offence was committed, in charge of and responsible to the Company for the conduct of the business of the Company. Every person connected with the Company shall not fall within the ambit of the provision. It is only those person who were in charge of and responsible for the conduct of business of the Company at the time of commission of an offence who will be liable for criminal action."
The learned counsel for accused No.6 & 8 relied upon the decision reported in 2022 SCC Online 579 between Dilip Hariramani Vs. Bank of Baroda, wherein observation is made by the Hon'ble Apex Court that, the provision of Sec.141 of N. I. Act impose vicarious liability by deeming fiction which per-supposes and requires the commission of the offence of the company or firm. Unless the company or firm has committed offence as a principal accused, the persons mentioned in Sec.141 (1) or (2) would not be liable and convicted as vicariously liable. Sec. 141 of the N. I. Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Sec.
SCCH-21 19 C.C. No.55657/2015141 has been satisfied then by deeming fiction, said persons are made vicariously liable and punished.
23. This Court summarized the defense taken by the accused as follows:
Accused no.3 has taken following defence :
(i) Accused No.3 being Chief Financial Officer of the accused No.1 Company is not responsible for the day to day affairs of the Company and he is not responsible for the conduct of the business of the Company.
(ii) Statutory notice issued to the accused No.1 is not duly served and received by the accused No.1.
(iii) Complainant has not issued separate notice to the accused No.3.
Accused No.6 and 8 have taken following defence :
(i) Accused No.6 was non-Executive Director of the Company, he is not involved in day to day affairs of the Company and accused No.8 was the Company secretary who had nothing to do with accounts, finance, tax, receipts, payments or cash flow or decisions.
(ii) Ex.P.22 i.e., notice is not issued in compliance of Sec.93 and 94 of N. I. Act.
(iii) Notice issued in contravention of Sec.138 (b) of the N. I. Act.
24. In view of the aforesaid documentary evidence, arguments of both side, now I proceed to discuss the materials available on record.
25. It is the specific contention of the complainant that, 1st accused is a Premier Airline Company, 2 nd accused is the MD of Accused No.1, 3rd accused is the Chief Financial SCCH-21 20 C.C. No.55657/2015 Officer of 1st accused, 4th accused is the Chief Executive Officer of the 1st accused Company, 5th to 7th accused are the full time Directors of the company, accused No.8 is the Secretary of the Company and accused No.9 is the Signatory to the cheques. Further it is also case of the complainant that, accused No.2 to 8 are the responsible person for the day to day affairs of the Company at the time when the offence was committed, accused No.9 being the Signatory to the cheques has the knowledge of the commission of the offence. Accused is an agent of the complainant was authorized to collect Passenger Service Fee, user development fee from the passenger for and on behalf of the complainant. Accused No.1 collected the Passenger Service Fee, user development fee from the passenger, but failed to pay the same to the complainant. Towards discharge of part payment accused issued 08 cheque for total sum of Rs.4,00,00,000/- but same was dishonored for the reason of insufficient funds. As such, complainant contended that, accused No.2 to 9 were the persons who were in-charge and responsible for the conduct of business of the accused No.1 company at the time of issuance of the cheques. It must be noted that, as stated above, in this case accused have not disputed the issuance of the cheque and signature made by the accused No.9 on the cheque. But they claimed that they are not responsible for the day today affairs of the company. As stated supra as per catena of Judgments of Hon'ble Apex Court, once the issuance and the signature of the cheque/s is admitted, there is always presumption infavour of complainant that there exists legally enforceable debt or liability. This being so, now it is the accused who have to rebut the presumption available SCCH-21 21 C.C. No.55657/2015 to the complainant as per S. 139 of N. I. Act and they need to prove that they are not responsible for issuance of cheques.
26. The record shows that, complainant company has adduced its evidence through Manager, Finance and Accounts, namely Mr. Manjunatharajeurs. Now the question would be this Mr. Manjunatharajeurs, who is examined himself as PW.1, has authority to represent the complainant company. It must be noted that, as per Ex.P.1 which is the Board Resolution, which shows that, the complainant company has authorized to Mr. Hari. K. Marar, M.D and CEO of the complainant company to prosecute this case for and on behalf of the complainant company. In turn he given the authority as per Ex.P.2 to the PW.1. So, this itself shows that, PW.1 has authorized to conduct the case, on behalf of the complainant Company.
27. The learned counsel for accused no.3 argued that, the word "Evidence" not mentioned in Ex.P.1. Hence, the question of Issuance of Authorization to the PW.1 by the Hari. K. Marar, MD and CEO of the complainant Company to conduct the case and adduce evidence as per Ex.P.2 does not arise. In the light of above argument, this court perused the Ex.P.1. Ex.P.1 is the relevant extracts from the Minutes of the 89th Meeting of the Board of Directors of Bangalore International Airport Limited held on Wednesday, the 30 th December 2017 at Bangalore. On perusal of the portion of Ex.P.1 i.e., provision in respect of institution of case, wherein it has mentioned that, Board of Directors had given powers to one Mr. Hari. K. Marar MD and CEO that, to institute and defend any legal proceedings by or against the Company or SCCH-21 22 C.C. No.55657/2015 its Directors/Employees in connection with the business of the Company and to appoint/remove advocates, solicitors and arbitrators and to determine their fees/charges and to incur expenditure thereon and such matters will be brought to the attention of the Board.
28. So, on perusal of above provision of Ex.P.1 it is clear that, nowhere the word "Evidence" is mentioned, but on reading the entire clause it gives meaning that, Mr. Hari K. Marar is having Power to institute and defend any legal proceedings by or against the Company means that, he can file complaint/plaint, Written state as well as give evidence before the Court. Further on perusal of Ex.P.2, it reveals that, the said Hari. K. Marar, MD and CEO of complainant Company has given authority to the PW.1 to attend and represent the Company in this case as may be necessary or expedient to give statement, evidence or any submission on behalf of the Company. As such, the question raised by the learned advocate for accused no.3 holds no water.
29. The next question would be, Whether so much of money was really due to be paid by the accused to the complainant Company. It must be noted that, complainant Company has filed this case alleging that, accused defaulted in making payments of the PSF and UDF and service charges to the complainant and accordingly became due and liable to pay a sum of Rs.58,40,02,893.64/-. So, towards the discharge of the part payment of the legally enforceable debt accused issued 08 cheques for total sum of Rs.4,00,00,000/-. Thus, it is the duty of this Court to decide that, whether SCCH-21 23 C.C. No.55657/2015 really so much of money was liable to be paid by the accused to the complainant.
30. To substantiate this fact, the complainant has produced schedule of Airport Charges from 24.05.2008 and 267 Airline Invoices and that they are marked as Ex.P.25 to Ex.P.293. A careful reading of the Ex.P.25 to Ex.P.293 makes it clear that, on going through the above documents it goes to show that, accused No.1 company used the Airport of complainant and collected the money from the passengers but not paid the same to the complainant company. This is one circumstance which supports the stand taken by the complainant.
31. Further, in the cross-examination of PW.1, counsel for accused No.3, 6 and 8 has not denied the assertion made by the PW.1 in his examination-in-chief that, accused Company used to avail the service of the complainant Company. Further contesting accused also have not at all posed, at least, a suggestion to the effect that, the information available in Ex.P.25 to Ex.P.293 are false or wrong. Thus, these facts makes it clear that there is no protest against Ex.P.25 to Ex.P.293. It is well settled that, whenever an opponent does not availe himself of the opportunity of the cross-examining the witness on particular point then the evidence tendered by such witness on particular point has to be accepted as to correct. This view, of this Court receives support from the law laid down by the Hon'ble High Court of Karnataka in decision reported in KLJ 2004 (5) 415 between Boby Mathew Vs. COD.
SCCH-21 24 C.C. No.55657/201532. Further, this Court has another reason to accept the Airline Invoices namely, Ex.P.25 to Ex.P.293 that, in the cross-examination of DW.1, DW.1 himself admits that, UDF and PSF are to be collected by the A1 from the passengers and the same is paid to the complainant Airport Authorities. Hence, this court opine that, accused No.1 company has due of the amount as made in the cheques.
33. The learned counsel for accused No.3 argued that, Accused No.3 being the Chief Financial Officer of the accused No.1 company is not responsible for the day to day affairs of the company. Further learned Counsel for accused no. 6 and 8 also taken defense that they are not liable for the act done by the Accused no.1 company. On the other hand, the learned counsel for complainant argued that, accused No.3 was in-charge of Financial Dealings of the Company before the dishonor of cheque, during the course of correspondence in-respect of issuance of cheque and after dishonor of cheque. Further he also argued that accused no.6 and 8 are the persons in charge of and responsible for the conduct of the business of the accused company when the offence was committed by the company. In support of his argument he relied upon the Ex.P.20, Ex-P23, 294, 295.
34. Section 138 of the N. I. Act refers to penalty in case of dishonour of a cheque for insufficient fund in the bank account. Since, the complaints have been filed against the Company alleging commission of offence under Section 138 of the N. I. Act therefore, it is appropriate to refer Section 141 of the N. I. Act, which deals with the offence by a Company:-
SCCH-21 25 C.C. No.55657/2015"141. Offences by companies. - (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub- section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.
(2) Notwithstanding anything contained in sub-
section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
35. The normal rule in the case involving criminal liability against vicarious liability, that is no one is to be held liable for an act of another. However, by way of exception, on SCCH-21 26 C.C. No.55657/2015 account of specific provision being made in the statute, criminal liability can be extended to others. Section 141 of the N. I. Act is an instance of specific provision, which in case an offence under Section 138 of the N. I. Act is committed by a Company, extends criminal liability for dishonour of cheque to the officers of the Company. For that purpose certain conditions, which are mentioned in Section 141 of the N. I. Act have to be satisfied and those conditions have to be strictly complied with. In that case apart from the Company, all persons, who at the time of commission of offence were in-charge and were responsible to the Company for conduct of business of the Company, are liable for the offence.
36. Moreover law on the point of necessary averments to attract liability U/s.141 of N. I. Act has been put to rest by various Judgments by Hon'ble Apex Court as well as our Hon'ble High Court of Karnataka. As per the judgments relied by the both complaint and accused as cited above, it is clear that, in order to put vicarious liabilities, specific averments must be made in the complaint itself highlighting the role of each persons/Directors/other officers as to how he was either responsible for day to day affairs or as to how and in what manner he was guilty of consent and connivance or negligence commission of the offence.
37. This Court has peruse the complaint, it is relevant to refer to para No.3, 4 and 12 of the complaint, which reads thus :
"Para No.3.... It is submitted that, the accused No.1, Kingfisher Airlines Limited (the "Company") was a premier airline Company operating across the globe, SCCH-21 27 C.C. No.55657/2015 with over 100 flights operating daily, domestically and internationally. It is submitted that the Company had successfully established itself as one of India's largest domestic carriers by passenger flown and cities served over the last decade. The Company has long enjoyed market leadership with a wide network reach in India. Accused No.2 is the Managing Director of the Company, accused Nos.3 is the Chief Financial Officer of the Company, accused No.4 is the Chief Executive Officer of the Company. Accused No.5, 6 and 7 are the Directors and full time Directors of the Company, accused No.8 us the Secretary of the Company and Accused No.9 is the signatory to the cheques. The cheques are also signed by another person/s, the complaint is not in a position to ascertain the name of the said person/s and hence reserves its liberty to implead the said person/s during the course of the trial of the instant case. The complainant herewith producing a copy of the latest Minutes of the Annual General Body Meeting of accused No.1 as filed by the Company with the Bombay Stock Exchange and downloaded from the website of the Bombay Stock Exchange as Document No.3. The Minutes of the Annual General Body Meeting of Accused No.1 clearly depicts the positions held by the Accused No.2 to 8 in the Company. The perusal of the cheques clearly depicts that the cheques are signed by accused No.9. All the accused are responsible for the day today activities of the Company."
Para No.4.....The accused No.3 is the Chief Financial Officer of the company and is responsible for all the financial dealings of the company. Accused No.4 is the Chief Executive Officer of the company and is SCCH-21 28 C.C. No.55657/2015 responsible for all the day to day activities of the company and plays an important role in the management and affairs of the company. Accused No.5 to 7 are the full-time Directors of the company and they were in-charge and responsible for the day to day affairs of the company at the time when the offence under the Act was committed. The accused No.8 is the Secretary of the company and he was also in charge and responsible for the day to day affairs of the company at the time when the offence under the Act was committed.
Para No.12.....the complainant would initiate action against all the persons who, at the time of drawing of the cheques, were in-charge of and were responsible for the conduct of business of accused No.1. The accused Nos.2 to 9 were the persons who were in charge and responsible for the conduct of business of the company at the time of issuance of the cheques. All the accused were well aware and it was within the knowledge of all the accused that the cheques issued to the complainant was towards the discharge of the part payment of the legally enforceable debt. The accused Nos.2 to 9 are the persons in charge of and responsible for the conduct of the business of the company when the offence was committed by the company."
It can thus be seen that, the complainant Company in order to verify the information and the credentials of the accused No.2 to 9 verified from the portal of Bombay Stock exchange and found that information furnished with respect to their position in accused No.1 Company. Therefore, as per the requirement of law u/s 141 of N. I. Act is concerned, the SCCH-21 29 C.C. No.55657/2015 complainant has fulfilled the basic criteria of carving out the rule of present accused No.3,6 and 8 in the complaint, for the commission of offence u/s 138 r/w Sec. 141 of N. I. Act. Further, in cross-examination DW.1 admits that, as on the date of issuance of cheque he was working as Chief Financial Officer of the accused No.1 company. Further, DW.1 admits in his cross-examination that, every e-mail sent on behalf of accused No.1 company has sent by him. Apart from this, as admitted by the accused No.3 himself, he was employed as the Chief Financial Officer of the accused No.1 Company whose task was to look after all the activities that encompass the finance department.
38. This Court peruse the Ex.P.23 i.e., the Minutes of the proceeding of the 17th Annual General meeting of the accused No.1 Company held on Wednesday, September 26 th, 2012 at 2.30 p.m at Bangalore. As per the said document, accused No.2 is the Chairman and Managing Director and accused No.3 is the Chief Financial Officer, accused No.4 is the Chief Executive Officer, accused No.5 and 7 are the Directors and accused No.6 is the Vice-chairman, accused No.8 is the Chief Legal Officer and Company Secretary.
39. On perusal of Ex.P.20 i.e., letter written by the accused No.3 on 16th April 2012 to the Mr. S. Chandrashekar, Assistant Vice-President, Finance and Accounts of B.I.A.L. stating that, Company will pay to B.I.A.L a sum of Rs.10,00,000/- daily which would cover the charges of the present schedule. On going through the above letter it reveals that, accused No.3 written the said letter only after SCCH-21 30 C.C. No.55657/2015 dishonor of 8 cheques issued by the accused No.1 Company. Though DW.1 deposed that, as per the instructions of MD, he has written the above letter. But he has not produced any evidence to show that, MD has given instructions.
40. On perusal of Ex.P.294 and Ex.P.295 i.e., the Extracts of Mail correspondence taken place between the complainant Company and accused No.3 on behalf of accused No.1 Company. On going through the above correspondence, it goes to show that, accused No.3 replied to one Mr. Albert Bruner in respect of Financial Transactions between the complainant and accused No.1. These three documents clearly reveals that, accused No.3 is well aware about the Financial dealings of accused No.1 Company with other companies and he is in-charge of said transaction/affairs of the company.
41. Apart, DW.1 in his cross-examination admits that, as per the Ex.D.5 Circular dated: 21.01.2006 his rule of CFO was commenced by Accused No.1 company. Further he also admits that, as per the Ex.P.295 Accused No.1 company had assured for making payment towards landing, housing and parking with UDF and PSF services to the Airport authorities. Further he also admits that, he has sent mail to the Albert Brunner i.e., CAO of the complainant company as per Ex.P.95. Though in his cross-examination DW.1 deposed that, he has made communication with complainant company by the approval of MD of Accused No.1 company. But in order to substantiate his claim he has not produced any document before the court. Further, in his cross-
SCCH-21 31 C.C. No.55657/2015examination DW.1 admits that, he was not acting as per the instructions of his MD.
42. The learned counsel for accused No.3 by referring the cross-examination of DW.1 argued that, without understanding the nature of work, complainant has made CFO of Accused No.1 as Accused No.3. But as discussed above, in this case, complainant not only averred about the role of Accused No.3 in respect of this case but also proved by producing sufficient documents before this court.
43. The learned counsel for contesting accused submitted that, they have not intimated the complainant company to submit cheque again. It is well settled principle of law that, cheque can be presented to the bank for several times but within 03 months from the date as mentioned in the cheque.
44. The complainant in the present case, not only pleaded in the complaint about role played by the accused No.3 but also pointed out in details the role played by the accused No.3 as CFO with documentary evidence. As such, complainant has fulfilled the legal requirements as per Sec.141 of N. I. Act. Moreover, the above accused No.3 fall within the category of persons responsible to the company for the conduct of the business of the company as laid down by the Hon'ble Apex Court in K. K. Ahuja Vs. V. K. Arora and others. The above discussion itself shows that, accused No.3 was actively involved in the day to day affairs of the company can be inferred.
SCCH-21 32 C.C. No.55657/201545. In this case accused No.1 is represented by the official liquidator. His defence that, during the process of winding up company petition, accused has issued the said cheque, and complainant has not filed any claim petition for the official liquidator. When the company goes into liquidation and cheque is presented thereafter it cannot be said that, company has committed the offence as it is because of legal bar that, it is precluded from making the payment. But in this case, cheque is presented before the company goes for liquidation. Moreover, in this case, the memo filed by the official liquidator contending that, the present complaint is not maintainable is already dismissed.
46. The learned advocate for accused No.3 relied upon decisions reported in (i) 2020 LiveLaw (SC) 622 between Ashok Shewakramani & Ors. Vs. State of Andhra Pradesh & Anr. And (ii) (2020) 15 SCC 348 between Anss Rajashekar Vs. Augustus Jeba Ananth.
47. In first decision, Hon'ble Supreme Court observed that, the allegation that they are in-charge of the Company is neither here nor their and by no stretch of imagination, on the basis of such averments one cannot conclude that, the allegation of the second respondent is that, the appellants were also responsible to the Company for the conduct of the business. On these facts, Hon'ble Apex Court held that, complainant failed to fulfill the requirements of Sec.141(1) of N. I. Act.
48. But in the present case, accused No. 5, 6 and 7 on the similar grounds challenged the issuance of process by SCCH-21 33 C.C. No.55657/2015 this court before the Hon'ble High Court of Karnataka in Crl. P. No.1629/2019, wherein the Hon'ble High Court of Karnataka at Para No.17 of the said order held that, "perusal of paragraph No.3, 4, 5, 12 of the complaint clearly shows that there are elaborate allegations in the complaint to the effect that, the petitioners were in-charge of the affairs of the Company and responsible for the conduct of the business of the Company. Therefore, totally there is no merit in the contention that, there are no allegations in the complaint against the petitioners in compliance with Sec.141 of the Act."
Further in this case, complainant in addition to above observations, the complainant also produced Ex.P.23 i.e., minutes of meeting of accused No.1 Company dtd:
26.09.2012, Ex.P.20 i.e., reply notice issued by accused No.3 on behalf of accused No.1 dtd: 16.12.2012. On going through the above documents in addition to the admission given by the accused No,3 in his cross-examination it goes to show that, accused No.3 is also responsible person for the day to day affairs of the Company. In addition to that, accused No.6 and 8 failed to step into the witness box to prove their defence. There is no compulsion on accused No.6 and 8 to prove their defence by stepping into the witness box they can rebut the presumption available to the complainant by cross-
examination of complainant as well as materials produced by the complainant itself. However, when the complainant made allegation in his complaint that, accused No.6 and 8 are also responsible for the transactions in question as well as they are also full time Director of Accused No.1 Company and they are also responsible for day to day affairs of the Accused no.1 SCCH-21 34 C.C. No.55657/2015 Company, in such circumstance it is the duty of the accused No.6 and 8 to produce materials before this court to prove that, they are not responsible for day to day affairs of accused No.1 Company. In such circumstances, the Judgment relied by the accused No.3 i.e., 2020 LiveLaw (SC) 622 between Ashok Shewakramani & Ors. Vs. State of Andhra Pradesh & Anr. is not helpful to the accused No.3.
49. In second decision, accused taken defence of 'there was an absence of legally enforceable debt was rendered probable on the basis of the materials available on record' and he also proved that, there was no existence of legally enforceable debt. In the above background Hon'ble Apex Court held that, having regard to the law laid down in Rangappa case accused rebutted the presumptions u/s 139 of N. I. Act. But in present case, accused No.3, 6 and 8 have not disputed the existence of legally enforceable debt. Hence, above Judgment relied by the accused No.3 is not helpful to him.
50. The learned counsel for accused No.6 and 8 filed written arguments claiming that, accused No.6 and 8 who were in no manner involved in any direct or indirect transaction with the complainant and who are mere individuals and in no position to withstand the onslaught by such a powerful organization. As such, accused No.6 and 8 deserves to be acquitted.
51. As discussed in earlier paragraphs, in this case, complainant has made specific averments against Accused No.6 and 8 in complaint regarding the position of the accused SCCH-21 35 C.C. No.55657/2015 No.6 and 8 at the time of issuance of cheque and dishonor of cheque. Moreover, in this regard accused No.6 has filed Crl. P. No. 1629/2019 before the Hon'ble High Court of Karnataka, wherein Hon'ble High Court of Karnataka held that, complainant has made out clear allegations that, they are in-charge of the affairs of the Company and responsible for conduct of the business of the Company. More ever it is the accused have to prove that, the offence was committed without their knowledge or that they have exercised or give diligence to prevent the dishonor of cheques. But admittedly in this case, accused No.6 and 8 have not lead any evidence to rebut the allegations of the complainant. Accused No.6 and 8 have not placed any evidence before this court that, the said offence is committed without their knowledge and they are not responsible for day to day affairs of the Complaint company.
52. In support of his case, learned counsel for accused No.6 and 8 relied upon the Judgment of Dananjaya Datar Vs. State of Maharashtra, on going through the above decision, wherein Hon'ble High Court of Bombay held that, CFO/accused in question are not the signatories of the cheques, the Criminal Complaint cannot be sustained. But the said observation is partly over ruled by the Hon'ble Apex Court in the case reported in (2016) 6 SCC 62 between Standard Charted Bank Vs. State of Maharashtra.
53. As stated above, learned counsel for accused No.6 and 8 relied upon the decisions as cited at para No.22. In all decisions Hon'ble Apex Court as well as Hon'ble High Courts made observation regarding what are the requirements to SCCH-21 36 C.C. No.55657/2015 bring a case within Sec.141 of the N. I. Act. As discussed above, in this case, complainant has clearly averred in the complaint regarding the position of accused as well as how they are responsible to the day to day affairs of the accused No.1 company. As such, said Judgments relied by the counsel for accused No.6 and 8 are not helpful to the accused No.6 and 8.
54. The accused also taken defence that, no separate notice is issued to them. It is appropriate to refer the decision of Hon'ble Apex Court reported in (2015) 8 SCC 28 between Krishna Texport Vs. Capital Markets Ltd., and II.AA. Agarwal and others, wherein at para no.18 the Hon'ble apex Court held that, in our view, Sec.138 of the Act does not admit of any necessity or scope for leading into it. The requirement that the Directors of the Company in question must also be issued individual notices u/s 138 of the N. I. Act. Such Directors, who are in-charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company u/s 138 of N. I. Act. Therefore, neither on literal construction nor on touchstone of purposive construction such requirement could or ought to be read into Sec. 138 of N. I. Act. As such, in view of above observations there is no need to give separate notice to the Directors of the Company.
55. In this case, accused have taken defence that, statutory notice not duly served upon the accuse No.1. The learned counsel for complainant argued that, after dishonour of cheques on 10.04.2012 a statutory demand notice dtd:
SCCH-21 37 C.C. No.55657/201516.04.2012 was issued to the accused No.1 as per Ex.P.21 to the Registered Address and same was delivered by RPAD on 19.04.2012. In the light of above argument, this court perused the cause title of the complaint, demand notice i.e., Ex.P.21, wherein the address of the accused No.1 shown as M/s Kingfisher Airlines Ltd., Kingfisher Airlines Limited, UB tower, Level 12, UB city, 24, Vittal Mallaya road, Bangalore-
560001, Karnataka. Further on perusal of postal receipt and postal acknowledgment i.e., Ex.P.309 and Ex.P.310 and legal notice marked at Ex.P.21 it reveals that, the address is mentioned as Managing Director, M/s Kingfisher Airlines Ltd., Kingfisher Airlines Limited, UB tower, Level 12, UB city, 24, Vittal Mallaya road, Bangalore-560001, Karnataka of accused No.1 is as same mentioned at cause title of the complaint as well as demand notice. The only contention raised by the contesting accused is that, the said notice is not served on the accused No.1. But on perusal of Postal Acknowledgment marked at Ex.P.310 reveals that, the said notice is received by the United Beverage Ltd., Bangalore. But as per Sec.27 of General Clauses Act, once notice has been dispatched to the correct address, principals incorporated u/ s 27 of General Clauses Act would attracted. In this case, as stated above on perusal of document marked at Ex.P.309 i.e., Postal Receipt reveals that, demand notice has been dispatched to the accused No.1 Company. Hence, in view of above discussion, the objections raised by the accused in respect of non-receipt of statutory notice holds no water.
56. The learned counsel for complainant argued that, accused No.3 is already convicted by the III Special SCCH-21 38 C.C. No.55657/2015 Magistrate, Hyderabad in C. C. No.102/2014 and C. C. No. 103/2014 initiated by GMR Hyderabad International Airport and also produced the said copy of judgment. On the other hand learned Counsel for accused No.3 argued that Special Court for Economic Offences at Bangalore acquitted the accused no.3 and he also produced the copy of said judgment bearing CC No.199/2016 on the file of Hon'ble Special Court for Economic Offences Bangalrore.But, said Judgments are not binding on this court.
57. On perusal of the entire materials on record, the contesting accused have failed to rebut the presumptions, which are in favour of the complainant. Section 141 of the N. I. Act, further envisages that every person, who was in-charge of and was responsible to the company for the conduct of the business shall be deemed to the guilty of the offence. The concept of vicarious liability has been explained by the Hon'ble Apex Court in the Cantena of decisions. The complainant has proved that the cheques in question have been issued towards legally enforceable debt. The contesting accused, who are in-charge and was responsible to the company are deemed to be guilty of the offence. The complainant is entitled for the benefit of the presumption as provided U/S 118 and 139 of N. I. Act. The accused Nos.3, 6 and 8 have failed to rebut the said presumptions.
58. Therefore, in view of my discussion it clearly goes to show that the complainant has proved that the accused has issued 08 cheques for an amount of Rs.4,00,00,000/- towards the part payment of the legally enforceable debt and SCCH-21 39 C.C. No.55657/2015 hence, I am of the opinion that in this point the complainant has proved the guilt of the accused for the offence punishable under Section 138 of N. I. Act. Accordingly, Point No.2 is answered in the Affirmative.
59. POINT No.3: Section 138 of N. I. Act empowers the Court to sentence the accused upto two years and also to impose fine which may extend to twice the amount of cheques or with both. The cheques in question were issued for an amount of Rs.4,00,00,000/-(Rupees Four crore Only). The complainant was deprived of money that was rightfully due to it for a period of 12 years till this date. Hence, if the interest is calculated at 7% p.a. on the cheque amount for the above period certainly the complainant is entitled for suitable compensation to the cheque amount as per Sec.80 of N.I. Act. Hence, in this case Rs.4,00,00,000/- is the cheque amount and interest at 7% for 12 years if calculated will amounts to Rs.3,35,99,952/-, as the case is pending clearly about 12 years and as such the total amount including interest will be of Rs.7,35,99,952/-.
60. However, having regard to the facts of the case and the amount involved, there are no warranting circumstances to award the sentence of imprisonment as substantive sentence. Directing the accused to pay fine and also awarding compensation to the complainant would meet the ends of justice. But adequate default sentence shall have to be imposed to ensure the recovery of fine imposed to the accused. Therefore, the complainant is required to be suitably compensated as per Section 80 and 117 of the SCCH-21 40 C.C. No.55657/2015 Negotiable Instrument Act and also appropriate in default sentence. Accordingly, I pass the following:
ORDER Acting U/Sec.255(1) of Cr.P.C. the accused No.1, 3, 6 and 8 are found guilty for the offence punishable under Sec.138 of N. I. Act.
Accused No.3, 6 and 8 are sentenced to pay a fine of Rs.7,35,99,952/- (Rupees Seven crore thirty five lakhs ninety nine thousand nine hundred and fifty two Only).
In default to pay fine, the accused No.3, 6 and 8 shall undergo simple imprisonment for a period of one year.
Further, acting U/Sec.357(1)(b) of Cr.P.C., on recovery of entire fine amount, a sum of Rs.7,35,98,952/- shall be paid as compensation to the complainant and remaining sum of Rs.10,000/- is order to be adjusted towards the state exchequer.
The office is directed to supply a free copy of judgment to the accused.
Office is directed to keep the copy of this Judgment in split-up CC No.15101/2019.
(Dictated to the Stenographer, transcribed and typed by her, same is corrected, signed and then pronounced by me in the open court on this the 16th day of December, 2024) (VIJAYKUMAR S. HIREMATH) XVII ADDL. JUDGE, Court of Small Causes & A.C.M.M, Mayo Hall Unit, Bengaluru.SCCH-21 41 C.C. No.55657/2015
ANNEXURE List of witnesses examined on behalf of the complainant:
P.W.1 : Sri. Manjunatharajeurs M R. P.W.2 : Sri Syed Arifulla Hussaini.
List of documents exhibited on behalf of the complainant:
Ex.P.1 : Board of resolution.
Ex.P.2 : Authorization letter.
Ex.P.3 to 10 : 8 Cheques.
Ex.P.11 to 18 : 8 bank endorsements
Ex.P.19 : Government circular
Ex.P.20 : Latter dated 16-04-2012 by the accused
Ex.P.21 : Legal notice.
Ex.P.22 : Letter dated 30-03-2012
Ex.P.23 : Minutes of board meeting
Ex.P.24 : Document of payment policy
Ex.P.25 : Schedule of Airport charges from 25-04-
2008
Ex.P.26 : Airline Invoice No.2100006797 dated
18-05-2010
Ex.P.27 : Airline Invoice No.2100007324 dated
19-07-2010
Ex.P.28 : Airline Invoice No 2100007437 dated
20.07.2010
Ex.P.29 : Airline Invoice No 2100007438 dated
20.07.2010
Ex.P.30 : Airline Invoice No 2100007439 dated
20.07.2010
Ex.P.31 : Airline Invoice No 2100007570 dated
03.08.2010
Ex.P.32 : Airline Invoice No 2100008923 dated
06.12.2010
Ex.P.33 : Airline Invoice No 2100008934 dated
15.12.2010
Ex.P.34 : Airline Invoice No 2100009307 dated
18.01.2011
Ex.P.35 : Airline Invoice No 2100009312 dated
18.01.2011
Ex.P.36 : Airline Invoice No 2100009405 dated
18.01.2011
Ex.P.37 : Airline Invoice No 2100009413 dated
19.01.2011
Ex.P.38 : Airline Invoice No 2100009479 dated
03.02.2011
SCCH-21 42 C.C. No.55657/2015
Ex.P.39 : Airline Invoice No 2100009571 dated
03.02.2011
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03.02.2011
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18.02.2011
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03.03.2011
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18.03.2011
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18.03.2011
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18.03.2011
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29.03.2011
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19.09.2011
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05.04.2011
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05.04.2011
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05.04.2011
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18.04.2011
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18.04.2011
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No.55657/2015 Ex.P.256 : Airline Invoice No. 2100013787 dated 20.02.2012 Ex.P.257 : Airline Invoice No. 2100013788 dated 20.02.2012 Ex.P.258 : Airline Invoice No. 2100013809 dated 20.02.2012 Ex.P.259 : Airline Invoice No. 2100013810 dated 27.02.2012 Ex.P.260 : Airline Invoice No. 2100013861 dated 03.03.2012 Ex.P.261 : Airline Invoice No. 2100013862 dated 03.03.2012 Ex.P.262 : Airline Invoice No. 2100013863 dated 03.03.2012 Ex.P.263 : Airline Invoice No. 2100013864 dated 03.03.2012 Ex.P.264 : Airline Invoice No. 2100013865 dated 03.03.2012 Ex.P.265 : Airline Invoice No. 2100013959 dated 03.03.2012 Ex.P.266 : Airline Invoice No. 2100013960 dated 03.03.2012 Ex.P.267 : Airline Invoice No. 2100013961 dated 03.03.2012 Ex.P.268 : Airline Invoice No. 2100013962 dated 03.03.2012 Ex.P.269 : Airline Invoice No. 2100013963 dated 03.03.2012 Ex.P.270 : Airline Invoice No. 2100013973 dated 03.03.2012 Ex.P.271 : Airline Invoice No. 2100013974 dated 03.03.2012 Ex.P.272 : Airline Invoice No. 2100014025 dated 19.03.2012 Ex.P.273 : Airline Invoice No. 2100014026 dated 19.03.2012 Ex.P.274 : Airline Invoice No. 2100014027 dated 19.03.2012 Ex.P.275 : Airline Invoice No. 2100014028 dated 19.03.2012 Ex.P.276 : Airline Invoice No. 2100014029 dated 19.03.2012 Ex.P.277 : Airline Invoice No. 2100014137 dated SCCH-21 53 C.C. No.55657/2015 19.03.2012 Ex.P.278 : Airline Invoice No. 2100014138 dated 19.03.2012 Ex.P.279 : Airline Invoice No. 2100014139 dated 19.03.2012 Ex.P.280 : Airline Invoice No. 2100014140 dated 19.03.2012 Ex.P.281 : Airline Invoice No. 2100014141 dated 19.03.2012 Ex.P.282 : Airline Invoice No. 2100014152 dated 19.03.2012 Ex.P.283 : Airline Invoice No. 2100014214 dated 31.03.2012 Ex.P.284 : Airline Invoice No. 2100014215 dated 31.03.2012 Ex.P.285 : Airline Invoice No. 2100014216 dated 31.03.2012 Ex.P.286 : Airline Invoice No. 2100014217 dated 31.03.2012 Ex.P.287 : Airline Invoice No. 2100014218 dated 31.03.2012 Ex.P.288 : Airline Invoice No. 2100014312 dated 31.03.2012 Ex.P.289 : Airline Invoice No. 2100014313 dated 31.03.2012 Ex.P.290 : Airline Invoice No. 2100014314 dated 31.03.2012 Ex.P.291 : Airline Invoice No. 2100014315 dated 31.03.2012 Ex.P.292 : Airline Invoice No. 2100014316 dated 31.03.2012 Ex.P.293 : Airline Invoice No. 2100014324 dated 31.03.2012 Ex.P.294 : E-Mail dated 24.03.2012 along with letter Ex.P.295 : E-Mail communications between Kingfisher Airlines ltd and Bengaluru International airports containing Page No. 1 to 62 Ex.P.296 : Certificate u/s 65(b) of Indian Evidence Act Ex.P.297 : Bank Account statement for Financial year 01-04-2008 to 31-03-2013 of SBI Ex.P.298 : Bank Account statement for Financial year 2008-09 of ICICI Ex.P.299 : Bank Account statement for Financial SCCH-21 54 C.C. No.55657/2015 year 2009-10 of ICICI Ex.P.300 : Bank Account statement for Financial year 01.04.2010 to 31.12.2011 of ICICI Ex.P.301 : Bank Account statement for Financial year 01.01.2012 to 31.03.2012 of ICICI Ex.P.302 : Excel Sheet showing out standing payments to be received by complainant Company as on 09.02.2012 Ex.P.303 : Excel Sheet showing out standing payments to be received by complainant Company as on 10.02.2012 to 03.04.2012 Ex.P.304 : Excel Sheet of statement of account of complainant Company as on 01.05.2008 TO 03.10.2012 Ex.P.305 : Certificate u/s 65(b) of Indian Evidence Act.
Ex.P.306 : Certified copy of Authorization letter dated 10.6.2010 issued by the Company to Sreedhar Hegde Ex.P.307 : Copy of Authorization letter dated 27.6.2010 issued by the Company in my favor of me Ex.P.308 : Copy of Board resolution Ex.P.309 : Postal receipt for notice at Ex.P21 Ex.P.310 : Postal acknowledgment for notice at Ex.P21 List of witnesses examined on behalf of the accused:
DW.1 : Sri. Raghunathan List of documents exhibited on behalf of the accused:
Ex.D1 : Original copy of appointment letter dtd: 04.09.1979 Ex.D2 : Original copy of letter dtd: 01.08.1993 Ex.D3 : Original copy of letter dtd: 26.08.2005 Ex.D4 : Original copy of letter dtd: 31.07.2013 Ex.D5 : Copy of circular dated: 21.01.2006 Ex.D6 : Copy of Employees final discharge form dtd: 16.08.2013 SCCH-21 55 C.C. No.55657/2015 Ex.D7 : Copy of receipt dated: 16.08.2012 Ex.D8 : Copy of order dtd: 23.06.2006 in COP No.51/2006 of Hon'ble High Court of Karnataka.
Ex.D9 : Copy of order dtd: 31.07.2006 in COP No.342/2006 of Hon'ble High Court of Karnataka.
Ex.D10 : Copy of Order dtd: 03.08.2019 in CC No.199/2016 by Special court for Economic offences.
Ex.D11 : Certificate u/s 65(B) of Indian Evidence Act.
(VIJAYKUMAR S. HIREMATH) XVII ADDL. JUDGE, Court of Small Causes & A.C.M.M, Mayo Hall Unit, Bengaluru.
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