Bangalore District Court
Investors And Realtors vs R/A No.E22 on 18 April, 2022
1 C.C.NO.6109/2018
SCCH-26
KABC020318252018
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL &
A.C.M.M. (SCCH26) AT BENGALURU
DATED THIS THE 18th DAY OF APRIL 2022
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER MACT
BENGALURU.
1. Sl. No. of the Case CC.No.6109 of 2018
2. The date of 06122018
commencement of
evidence
3. The date of closing 08022022
evidence
4. Name of the M/s Sachin Khimji Nuvo
Complainant Investors and Realtors
Private limited
A company registered
under the Indian
companies Act 1956,
having its registered office
at Binny cresent
apartments, 16A Block D,
Benson cross road,
Bangalore560 046
Represented by its
2 C.C.NO.6109/2018
SCCH-26
Director Mr.Sachin Khimji
(By Sri.J.M.Advocate)
5. Name of the Mr.Vasu N
Accused R/a No.E22, 3rd A cross,
Manyata Residency,
Hebbal ring road,
Nagavara,
Bangalore560094.
(By Sri.D.B.Advocate)
6. The offence U/s.138 of the
complained of Negotiable Instruments
Act
7. Opinion of the Accused found guilty
judge
JUDGMENT
The complainant filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed the offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act)
2. The brief facts of the complainant case is as under:
3 C.C.NO.6109/2018
SCCH-26 That the complainant is a private limited company located in Bangalore and is primarily associated in the real estate sector. That the accused is the founder director of V3 engineers private limited which is a furniture solutions company based in Bangalore. That the complainant had extended financial assistance to the company and invested in the company in convertible preference shares which were subsequently converted into equity shares of the company and complainant is holding 29,32,308/ equity shares of Rs.10/ amounting to 30% of the paid up capital of the company. That the accused along with te other promotor directors of the company are holding 70% of the paid up capital of the company, one of the conditions of the financial assistance extended by the complainant was that the promoter directors will enable the exit of the complainant from the company with the agreed return on investment and therefore the complainant was desirous of existing by disposing its entire equity shares in the company proportionately in favour of the accused and other promoter directors as agreed by the accused and the other promoter directors of the company. That 4 C.C.NO.6109/2018 SCCH-26 the complainant entered into a shareholders agreement dated 233 2018 (SHA) along with the accused and other promoter directors of the company to dispose off its shareholding in the company on the agreed terms and conditions as incorporated in the said SHA. That the accused along with the other promoter directors of the company had agreed to purchase the entire shareholding of the complainant in proportion to their shareholding in the company to provide the agreed exit to the complainant. That as per the SHA, the accused had issued post dated cheques dated 342018 in favour of the complainant for his share of the total sale consideration to be paid to the complainant and deposited the same with an escrow agent as agreed between the parties. That in terms of the said addendum, the promoter directors of the company including the accused had issued fresh undated cheques in favour of the complainant and deposited the cheques with the escrow agent. That the accused issued (a) cheque No.121260 drawn on ICICI bank, Malleshwaram branch for Rs.20 lakhs (b) cheque No.121258 drawn on ICICI bank, Malleshwaram branch for Rs.45 lakhs (c) cheque No.001450 drawn 5 C.C.NO.6109/2018 SCCH-26 on ICICI bank, Malleshwaram branch for Rs.65 lakhs (d) cheque No.121257 drawn on ICICI bank, Malleshwaram branch for Rs.75 lakhs (e) cheque No.121256 drawn on ICICI bank, Malleshwaram branch for Rs.65 lakhs. That after discussing with the accused, all the cheques were dated 11102018 and the accused instructed the complainant to present all the cheques on 29102018. That the complainant presented the cheques with his banker, but the same has been returned with endorsement Funds Insufficient and payment stopped by the drawer. That the complainant issued legal notice to the accused, but the accused has failed to make the payment of the cheque amount to the complainant within 15 days. Hence filed this complaint.
3. After filing of this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. Thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the accused. In response of summons, accused appeared through his counsel and got enlarged him on bail. The plea was recorded, read over and explained to the accused he pleaded not 6 C.C.NO.6109/2018 SCCH-26 guilty and claims to be tried. Hence the case is posted for complainant evidence.
4. In order to establish his case, Sachin B. KhimjiDirector of the complainant company himself examined as PW1 and got marked 18 documents as ExP1 to 18. Vasu got examined as DW1 and got marked ExD1 to 25.
5. Heard oral arguments from complainant counsel. The counsel for accused has filed detailed written arguments along some decisions of higher courts. The complainant counsel placed reliance on below decisions:
1. Boopesh Rathod Vs Dayashankar Prasad Chaurasia and others AIR 2021 SC 5726 (DB)
2. Modi Cements Ltd., Vs Kuchilkumar Nandi 1998 (3) SCC 249
3. K.N.Beena Vs Muniyappan and others 2001 (8) SCC 458
4. Jayam company Vs T.Ravichandran 2003 CR.L.J. 2890
5. Rangappa Vs Mohan 2010 (11) SCC 441
6. Kalamani Tex and another Vs P.Balasubramaniyan 2021 (5) SCC 283
7.Triyambak S.Hegde Vs Sripad 2021 SCC online SC 788
8. Lakshmi Dychem Vs State of Gujarath and others 2012(3) SCC 375
9. Birsingh Vs Mukesh Kumar 2019 (4) SCC 197
10. Ripudaman Singh Vs Balakrishna 2019 (4) SCC 767 7 C.C.NO.6109/2018 SCCH-26
11. T.R.Srinivasaiah Vs Chikkamagalur District cooperative Central Bank Ltd., (Criminal Revision No.109/2017)
12. Sri.Dhaneshwari Traders Vs Sanjay Jain and another 2019 (16) SCC 83
6. On the other hand, the counsel for accused placed his reliance on below decisions :
1. 2007(2) Bankman 306 Bombay High courtAshok Bampto pagui Vs Agencia real canacona pvt., Ltd., and others
2. Kumar Exports Vs Sharma carpets 2009(2) SCC 513
3. Venkatesh Bhat Vs Rohidas Shenoy 2009 SCC online Karnataka 615
4. Govindaram Chanani Vs Latha and others 2009 SCC online KAR 39
5. Indus Airways Private Limited Vs Magnum aviation Pvt., Ltd., and another 2014 (12) SCC 539
6. 2017 SCC online Bombay 8085 Shaikh Jalal Vs State of Goa and others
7. Upon perusal of the material placed on record, the following points arise for my consideration: POINTS
1. Whether the complainant proves that the accused had issued cheques in question in discharge of the legally recoverable debt as contended by him? 8 C.C.NO.6109/2018
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2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
8. My answer to the above points is as follows : Point No.1 to 3 :In the Affirmative Point No.4 : As per final order for the following : REASONS
9. POINT NO.1 to 3 : Since these points are interlinked and to avoid repetition they are taken together for common discussion. Before peeping the disputed facts it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant company is a registered private limited company and accused is the founder director of V3 engineers pvt., Ltd., company. The complainant company primarily associated in the real estate sector. The accused company furniture solutions company based in Bangalore. The complainant company represented by its director Mr.Sachin Khimji. The complainant company and V3 engineers company director one Guruprasad had entered into agreement 9 C.C.NO.6109/2018 SCCH-26 on 2952010, the complainant has invested 150 lakhs by cheque bearing No.526725 dt.2752010 drawn on HDFC bank Ltd., being the prize of Rs.5,76,923/ of cumulative non convertible preference shares carried fixed return of 20% p.a. and redeemable at the close of 5th year from the date of allotment to be allotted at Rs.26/ per share (face value Rs.10/ + 16 premium). The complainant had invested in the company in convertible preference shares which were subsequently converted into equity shares of the company and complainant was holding Rs.29,32,308/ equity shares of Rs.10/ amounting to 30% of paidup capital of the company. Accused along with other promotor director of the company were holding 70% of the paidup capital of the company. The complainant wanted to exit from the company and was desirous of disposing his entire equity share in the company in favour of the accused and other promoters. The complainant entered into a share purchase agreement dt.2332018 along with the accused and other promotor directors of the company to dispose of his share holding in the company. Accused and other promotor directors of the company had agreed to purchase the share holding of the complainant in proportion to share holding of the company. As per the share purchase agreement, accused has issued five post dated cheques dt.342018 to 2542018 in favour of complainant for his share of the total sale consideration to the escrow agent 10 C.C.NO.6109/2018 SCCH-26 as agreed between the parties. Due to various reasons the transaction could not be completed and cheques issued by the accused in favour of the complainant were not deposited. All the cheques issued by the accused and other promoter director of the company had expired and addendum to the share purchase agreement was entered between the complainant and promoter directors of the company dt.2762018. For various reasons the accused himself requested the complainant not to deposit the cheques issued by the accused in favour of complainant for realisation. The cheques issued by the accused and other directors of the company had expired. Therefore accused and other promoter directors of the V3 engineers company and complainant company had entered an addendum to share purchase agreement on 2762018. Fresh cheques issued by directors of V3 engineers company and same deposited with the escrow agent. After discussing with the accused, all the cheques were dated 11102018 the accused instructed the complainant to present all the cheques on 29102018. The complainant presented the cheques with his banker Axis bank, Cox town branch and same has been returned with the endorsement a cheque bearing No.001450 was unpaid on account of "Funds Insufficient". The other four cheques were unpaid on account of "Payment stopped by the drawer". The complainant immediately contacted the accused and orally informed about cheques have been returned 11 C.C.NO.6109/2018 SCCH-26 as Unpaid and requested to make payment of entire dues being cheque amount immediately. But accused not chosen to respond complainant. The complainant try to contact the accused to resolve the matter, but accused has chosen to avoid the complainant on one pretext or other. The complainant immediately caused legal notice dt.9112018 and calling upon the accused to pay disputed cheque amount of Rs.2,70,00,000/ (Rupees two crores seventy lakhs only) to the complainant within 15 days from the receipt of the statutory notice. The said legal notice duly served on accused, despite issuing the statutory notice to the accused, the accused failed to make the payment of the cheque amount to the complainant within 15 days nor as he issued a reply to the notice sent by the complainant. The said notice duly served to the accused. The accused sent reply notice dt.27112018 to the complainant. The cheques in question belongs to accused and bear signature is also belongs to accused.
10. With above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant company as to commission of the offence punishable under section 138 of NI Act. While recording his plea for the said offence and also accused has denied the incriminating circumstance found in the evidence of the complainant. At the time of recording of his statement under section 313 of 12 C.C.NO.6109/2018 SCCH-26 Cr.P.C., The accused mainly denied the claim of complainant company, on going through the crossexamination of PW1, it is clear that in addition to the total denial of the case of the complainant company, the accused has specifically contended that he know the complainant and his company. Accused was director of product design and technical matters in V3 engineers company. One Sampath Raghavan was director of V3 engineers pvt., Ltd., for sales and marketing. One Guruprasad was director for finance and day today administration of V3 engineers pvt., Ltd., company. In the year 2014, the V3 engineers company had bad financial status and labour unrest having difficulty in managing company. The complainant was share holder and he holding Rs.30,00,000/ of share Rs.10/ value in V3 engineers private limited company in the year 2017. ExP14 and 15 had entered between complainant company and directors of V3 engineers private limited company, for V3 engineers private limited company had financial problem. The V3 engineers company from 20152016 onwards suffered financial losses and lot of pressure from financial institution statutory authorities, due to loss and financial problem. Therefore company decided to dispose company assets which is stood in the name of company. The V3 engineers company had registered office near Nelamangala, thereafter V3 engineers company has identify some buyers, they wanted special resolution from all the share holders 13 C.C.NO.6109/2018 SCCH-26 from the company. Then Sachin Khimji has insisted to buy the shares at the higher value. He did not cooperate for pass special resolution until to done share purchase agreement and he collected signed blank cheques. Sachin Khimji advocate had prepared SHARE Purchase agreement and collected cheques. The directors of V3 engineers company signed on share purchase agreement and shares pertaining to V3 engineers company still stands in the name of Sachin Khimji. The directors of V3 engineers did not purchase back shares from Sachin Khimji. The V3 engineering company having loan in SBI Rs.11,50,00,000/ and in Exim bank Rs.3 crores. The bank officials repeatedly sent notice to V3 engineers company as well as properties of V3 engineers company and personal property of directors of V3 engineers company. One Sampath Raghavan and accused of this case have mortgaged their properties to above loan to the banks. The bank officials had been threatening and workers also starting making strikes. So the directors of V3 engineers company did not have any option. Finally the directors of V3 engineers company decided to identify buyers to sell at higher value. At this movement, the bank officials force to sell properties like land and machineries of V3 engineers company. The buyers were also demanding approval from all share holders of V3 engineers company, then directors approached Sachin Khimji for approval, he refused and say that only if agreed to execute share purchase 14 C.C.NO.6109/2018 SCCH-26 agreement at high value, then only he would sign on special resolution to sell company properties. Then directors trying to convince Sachin Khimji, but he did not accept, without any option the directors of V3 engineers company have signed on ExP14 and 15 under duress and Sachin Khimji collected 6 cheques of all the directors of V3 engineers company. There is no valuation for the shares at the time of executing ExP14 and 15. No valuation circulated by Sachin Khimji to other directors. All the documents executed before one Smt.Jayashree Murali advocate and escrow agent. Smt.Jayashree Murali had drafted special resolution and share purchase agreement. ExP14, 15 and signed cheques had been kept in custody of Smt.Jayashree Murali. Shares are not yet transferred till date. In October 2018 sent a letter to Sachin Khimji requesting not to present cheques and filed arbitration application by disputing ExP14 and 15. Inspite of that he presented disputed cheques for collection of amount through his banker and cheques got bounced and filed this case against accused. He already sent legal notice to Sachin Khimji. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine.
11. It is needless to say that the proceeding under section 138 of NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilty is proved beyond all reasonable doubt. In the 15 C.C.NO.6109/2018 SCCH-26 proceedings initiated under section 138 of NI Act, proof beyond all reasonable doubt is subjected to presumption envisaged under section 139 of NI Act. Once the requirement of Sec.138 of NI Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged under Sec.139 of NI Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of NI Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa V/s Mohan reported in AIR 2010 SC (1898) by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishnajanardhana Bhat V/s Dattareya G. Hegde reported in AIR 2008 SC (1325) it was held that "existence of legally recoverable debt or liability is a matter of presumption under section 139 of NI Act". The Hon'ble Apex Court disapproved the principle laid down in Krishnajanardhana Bhat case that "initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshmi Naryana V/s Smt. Girijamma reported in 2010(4) KCCR 2637 it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further the Hon'ble Apex Court in Crl. Appeal No.803/2018 Krishna Rao V/s Shankare Gowda reported in 2018(7) SCJ 300 reiterated the above principle further as provided under Sec.118 it is to be presumed that the cheque in question 16 C.C.NO.6109/2018 SCCH-26 was issued for consideration on the date found therein.
12. In the light of the rival contention of the parties at the outset it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of NI Act as contended. In order to prove the case of the complainant company while precognizance stage, one Sachin Khimji director of the complainant company examined before this court as PW1 and he produced ExP1 to 18 documents. After post cognizance stage, the evidence lead by PW1 treated as evidence of complainant. On the other hand the accused himself orally examined as DW1 and he produced ExD1 to 29. On perusal of complainant exhibits i.e., ExP1 to 18. ExP1cheque dated 11102018 issued to payee name Sachin Khimji Nuvo investors and realtors Pvt., Ltd., for a sum of Rs.20 lakhs. ExP2cheque dated 11102018 issued to payee name Sachin Khimji Nuvo investors and realtors Pvt., Ltd., for a sum of Rs.45 lakhs. ExP3cheque dated 11102018 issued to payee name Sachin Khimji Nuvo investors and realtors Pvt., Ltd., for a sum of Rs.65 lakhs. ExP4cheque dated 11102018 issued to payee name Sachin Khimji Nuvo investors and realtors Pvt., Ltd., for a sum of Rs.75 lakhs. ExP5cheque dated 11102018 issued to payee name Sachin Khimji Nuvo investors and realtors Pvt., Ltd., for a sum of Rs.65 lakhs. ExP6bank endorsement dt.29102018 cheque bearing No.1450 i.e., ExP3 returned for the reasons of Funds 17 C.C.NO.6109/2018 SCCH-26 Insufficient. ExP7bank endorsement dt.29102018 cheque bearing No.121260 i.e., ExP1 returned for the reasons of Payment stopped by the drawer. ExP8bank endorsement dt.29102018 cheque bearing No.121298 returned for the reasons of Payment stopped by drawer. ExP9 bank endorsement dt.29102018 cheque bearing No.121257 i.e., ExP4 returned for the reasons of payment stopped by the drawer. ExP10bank endorsement dt.29102018 cheque bearing No.121256 returned for the reasons of payment stopped by the drawer. ExP11legal notice dated 9112018 which is issued upon the instructions of M/s Sachin Khimji Nuvo investors and realtors Pvt., Ltd., to accused. ExP12postal acknowledgment dt.15112018. ExP13reply notice to Smt.Jayashree Murali advocate by accused dt.27112018. ExP14 share purchase agreement dt.2332018 entered between directors of V3 engineers company i.e., one R.Guruprasad, one S.Sampath Raghavan and N.Vasu and M/s Sachin Khimji Nuvo investors and realtors Pvt., Ltd., company. ExP15 addendum to share purchase agreement which is entered on 2762018 between directors of V3 engineers company i.e., one R.Guruprasad, one S.Sampath Raghavan and N.Vasu and M/s Sachin Khimji Nuvo investors and realtors Pvt., Ltd., company. ExP16agreement dated 29 52010 by M/s V3 engineers private Ltd., company and Sachin Bharath Khimji. ExP17agreement dt.952010 entered between M/s V3 engineers private 18 C.C.NO.6109/2018 SCCH-26 Ltd., company and Sachin Bharath Khimji. ExP18email conversation dated 1632018 from Sampath Raghavan to Guruprasad. On the other hand accused himself orally examined as DW1 and produced 29 documents. Ex D1one letter which is prepared by Deepak Basavaraju advocate to Sachin Khimji Nuvo investors and realtors Pvt., Ltd., and its director Sachin Khimji, Guruprasad, Mrs.Jayashree Muraliescrow agent for initiating arbitration proceedings under clause 7.1 of the share purchase agreement dt.2332018. ExD2 postal acknowledgment which is served on one Pushpa K. on 2510 2018. ExD3 postal acknowledgment which is served on one V.Sukanya. Ex D4 postal acknowledgment it is duly served to one Smt.Jayashree Murali advocate. ExD5 plaint copy of arbitration case No.370/2018 which is filed by Sampath Raghavan, Vasu against Sachin Khimji Nuvo investors and realtors pvt., Ltd., before the principle Judge of City Civil court at Bangalore. ExD6 entire ordersheet of AA 370/2018 which is pertaining to the file of principle city civil and Session Judge of City Civil court at Bangalore. ExD7letter dated 25102018 by Sachin Khimji Nuvo investors and realtors Pvt., Ltd., to one Mr.Deepak Basavaraj Advocate. ExD8unopened postal cover. ExD9 letter dated 9112018 which is issued by Deepak Basavaraj advocate to Sachin Khimji Nuvo investors and realtors Pvt., Ltd. Its director Mr.Sachin Khimji. ExD10postal receipt.9112018. ExD11letter dt.20112018 to 19 C.C.NO.6109/2018 SCCH-26 Deepak Basavaraj advocate by Sachin Khimji Nuvo investors and realtors Pvt., Ltd. By its director Sachin Khimji. ExD12opened RPAD cover which is address to Mr.Deepak Basavaraj Advocate, Bangalore. ExD13demand notice issued by SBI, SME branch, Kumara park, Bangalore to M/s V3 engineers pvt., Ltd., company dt.26122017. ExD14notice issued by SBI, SME branch, Kumara park, Bangalore to guarantor Mr.Vasu Narayan S/oSri.K.Narayan dt.26122017. ExD15letter issued by Chief Manager, SBI, SME, Kumarapark branch, Bangalore 20 to Vasu Narayan dt.2062018. ExD16balance sheet as at 3132014 pertaining to M/s V3 engineers pvt., Ltd., company. ExD17 balance sheet as at 3132015 pertaining to M/s V3 engineers pvt., Ltd., company. ExD18balance sheet as at 3132016 pertaining to M/s V3 engineers pvt., Ltd., company. ExD19balance sheet as at 3132017 pertaining to M/s V3 engineers pvt., Ltd., company. ExD20balance sheet as at 3132018 pertaining to M/s V3 engineers pvt., Ltd., company. ExD21 balance sheet as at 3132019 pertaining to M/s V3 engineers pvt., Ltd., company. ExD22balance sheet as at 3132020 pertaining to M/s V3 engineers pvt., Ltd., company. ExD23copy of the minutes of extraordinary general meetings of the company i.e., V3 engineers company dt.332018. Ex D24balance sheet as at 3132014 pertaining to M/s V3 engineers pvt., Ltd., company. ExD25NCLT case No.CP(IB) No.315/BB/2019 order copy. Ex 20 C.C.NO.6109/2018 SCCH-26 D26certificate of incorporation of the company Neo Alchemy Build India LLP. ExD27 consent letter dt.7102017 to act as a designated partner i.e., Sachin Bharath Khimji nominated as designated partner to Neo Alchemy Build India LLP. ExD28consent letter by Guruprasad to appoint as designated partner to Neo Alchemy Build India LLP. ExD2965 B (4) certificate which is issued by accused.
13. On perusal of complainant oral and documentary evidence, it is clear that the complainant had presented the cheque for encashment within its validity, got issued statutory notice in time and presented the complaint within the prescribed period. So it is clear that complainant complied statutory requirements of presenting cheque, issuing notice and presenting complaint well in time.
14. In order to prove the case of complainant company, director of M/s Sachin Khimji Nova investors and realtors pvt., Ltd.,co., examined as PW1 and he produced ExP1 to 18 and he subjected cross examination by accused. During course of cross examination PW1 has stated that his complete name Sachin Bharath Khimji.He did Diploma autometic engineering, he doing nature of investment business. He doing as a director in complainant company. The complainant company had two directors i.e., Sachin Bharath Khimji and his wife. There is no board of directors meeting in complainant 21 C.C.NO.6109/2018 SCCH-26 company to file case against this accused. Further PW1 deposed that he invested in other companies and he admitted he was director and share holders in various companies. Further PW1 denied the suggestion of accused that he had no authority to represent complainant company. Further PW1 deposed during course of cross examination that after investing money the complainant company did not get interest on investing amount. The complainant did not get any interest from complainant company. The present accused of this case known to complainant 20092010. Further PW1 pleaded ignorance during course of cross examination, he did not aware when he purchased preferential shares of V3 engineers company and when preferential shares converted into equity shares. Further he pleaded ignorance how much shares he having in V3 engineers company and how much value of shares at the time of purchase by the complainant. Later he stated he purchased worth of 11 crores shares from V3 engineers company. After converting preferential shares into equity shares the total value of shares become Rs.7,80,00,000/. Further PW1 clearly admitted during course of cross examination that upon the request of complainant, the preferential shares converted into equity shares and he was partner of Neo Alchemy Build India LLP. Further PW1 stated during course of cross examination that he did not advanced any loan in the name of complainant company to any company and 22 C.C.NO.6109/2018 SCCH-26 he did not advanced any loan in the name of personally to any company. He clearly stated during cross examination that after investing money in the company he get dividends from company as returns to the profit to the company. Further PW1 pleaded his ignorance about whether he received any amount from V3 engineers company in the year 2019 and in Feb.2011. Further it is admitted by PW1 that he did not advanced any loan in his personal capacity to accused, his company invested money in V3 engineers company for purchasing shares. The complainant company had purchased 30% of shares of V3 engineers company. The complainant company had shares in the company name. Further he pleaded ignorance about the V3 engineers company had financial loss in the year 2016 to 2018 and said company had get loans from various banks. Further he pleaded ignorance about the V3 engineers company had received notice under surface Act from the banks. Further PW1 stated that he knew about compromise arrived between one director Guruprasad, but he did not know actual date of compromise. Further PW1 deposed during course of cross examination that he always participated in the meetings which is held in V3 engineers company, he was also participated on 2332018 extraordinary AGM meeting for selling assets of V3 engineers company. Further PW1 pleaded his ignorance about before purchasing V3 engineers company shares whether he verify or not 23 C.C.NO.6109/2018 SCCH-26 balance sheet of V3 engineers company. Further he expressed inability to say whether he received sales commission from company dividend from V3 engineers company. Further he admitted and stated that normally he received dividends by the companies for investing money in the company. Further he expressed inability to say about the V3 engineers company had properties in survey No.6/3, Sy.No.148/1A, Sy.No.148/1B in Deganahalli village, Nelamangala Taluk, Bangalore rural district. Further it is elicited during course of cross examination through PW1 that he well aware about preparation of share purchase agreement which is prepared by Advocate Smt.Jayashree Murali, he gave instructions to advocate for preparing share purchase agreement, the said Jayashree Murali was escrow agent, the V3 engineers company directors by name N.Vasu, Guruprasad, Sampath Raghavan cheques were handed over to possession of Smt.Jayashree Murali. The said advocate appointed as escrow, therefore the cheques of directors of V3 engineers company handed over to Smt.Jayashree Murali advocate. Further PW1 contending during course of cross examination that he had 30% shares in V3 engineers company. ExP14 and 15 prepared at the instance and instructions of PW1 and directors of V3 engineers company by Jayashree Murali advocate and escrow agent. Further it is elicited during course of cross examination of PW1 that except ExP14 and 15 no document produced for 24 C.C.NO.6109/2018 SCCH-26 showing the accused permitted complainant to present cheques to the bank for collection and further he contended in the cross examination that the accused specifically instructed on 29102018 for presenting cheques to the banks. But PW1 contended accused orally instructed to him for presenting cheques on 29102018. Further PW1 deposed that he knew about exchange of notice between complainant and accused. Further PW1 specifically denied the suggestion of accused that the V3 engineers company gave Rs.5,90,00,000/ and gave dividend of Rs.1,63,77,374/. Further PW1 denied the suggestion of accused that ExP14 and 15 are not acted upon. Further PW1 contended that he did not received any amount under ExP14 and 15. Further PW1 denied the specific suggestion of accused that still share certificates with the possession of escrow agent, he did not get any loss from shares of V3 engineers company. Further PW1 clearly and categorically denied formal suggestions of accused.
15. It is well settled principle of law through catena of decisions that though the statutory presumptions available under Sec.118 and 139 of NI Act are mandatory in nature, they are the rebuttal one. It is needless to say that when the complainant proves the requirement of Sec.138 of NI Act the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the 25 C.C.NO.6109/2018 SCCH-26 presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts on the shoulder of the complainant. It is also settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the Acts elicited in the crossexamination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decisions of the Hon'ble Apex Court reported in 2006(3) SCC (CRL) 30 Tamilnadu Marcantile Bank Limited V/s M/s Subbaiah Gas Agency and others. ILR 2009 (2) 1633 Kumar Exports V/s Sharma Carpets, AIR 2008 SCC 1325 Krishnajanardhana V/s Dattareya G. Hegde, 2013 SCR (SAR) CRI 373 Vijay V/s Lakshman & another and AIR 2010 SC 1898 Rangappa V/s Mohan and Crl. Appeal No.230 & 231/2019 Bir Singh V/s Mukesh Kumar. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complaint.
26 C.C.NO.6109/2018
SCCH-26
16. In order to disprove the case of complainant company and prove his defence the accused orally examined before this court as DW1 and he specifically deposed that he know the complainant and his company. Accused was director of product design and technical matters in V3 engineers company. One Sampath Raghavan was director of V3 engineers pvt., Ltd., for sales and marketing. One Guruprasad was director for finance and day today administration of V3 engineers pvt., Ltd., company. In the year 2014, the V3 engineers company had bad financial status and labour unrest having difficulty in managing company. The complainant was share holder and he holding Rs.30,00,000/ of share Rs.10/ value in V3 engineers private limited company in the year 2017. ExP14 and 15 had entered between complainant company and directors of V3 engineers private limited company, for V3 engineers private limited company had financial problem. The V3 engineers company from 20152016 onwards suffered financial losses and lot of pressure from financial institution statutory authorities, due to loss and financial problem. Therefore company decided to dispose company assets which is stood in the name of company. The V3 engineers company had registered office near Nelamangala, thereafter V3 engineers company has identify some buyers, they wanted special resolution from all the share holders from the company. Then Sachin Khimji has insisted to buy the shares at the 27 C.C.NO.6109/2018 SCCH-26 higher value. He did not cooperate for pass special resolution until to done share purchase agreement and he collected signed blank cheques. Sachin Khimji advocate had prepared SHARE Purchase agreement and collected cheques. The directors of V3 engineers company signed on share purchase agreement and shares pertaining to V3 engineers company still stands in the name of Sachin Khimji. The directors of V3 engineers did not purchase back shares from Sachin Khimji. The V3 engineering company having loan in SBI Rs.11,50,00,000/ and in Exim bank Rs.3 crores. The bank officials repeatedly sent notice to V3 engineers company as well as properties of V3 engineers company and personal property of directors of V3 engineers company. One Sampath Raghavan and accused of this case have mortgaged their properties to above loan to the banks. The bank officials had been threatening and workers also starting making strikes. So the directors of V3 engineers company did not have any option. Finally the directors of V3 engineers company decided to identify buyers to sell at higher value. At this movement, the bank officials force to sell properties like land and machineries of V3 engineers company. The buyers were also demanding approval from all share holders of V3 engineers company, then directors approached Sachin Khimji for approval, he refused and say that only if agreed to execute share purchase agreement at high value, then only he would sign on special resolution to sell 28 C.C.NO.6109/2018 SCCH-26 company properties. Then directors trying to convince Sachin Khimji, but he did not accept, without any option the directors of V3 engineers company have signed on ExP14 and 15 under duress and Sachin Khimji collected 6 cheques of all the directors of V3 engineers company. There is no valuation for the shares at the time of executing ExP14 and 15. No valuation circulated by Sachin Khimji to other directors. All the documents executed before one Smt.Jayashree Murali advocate and escrow agent. Smt.Jayashree Murali had drafted special resolution and share purchase agreement. ExP14, 15 and signed cheques had been kept in custody of Smt.Jayashree Murali. Shares are not yet transferred till date. In October 2018 sent a letter to Sachin Khimji requesting not to present cheques and filed arbitration application by disputing ExP14 and 15. Inspite of that he presented disputed cheques for collection of amount through his banker and cheques got bounced and filed this case against accused. He already sent legal notice to Sachin Khimji. On the basis of his oral evidence and ExD1 to 29, he sought for dismissal of this complaint. He has been subjected cross examination by complainant at length. During course of cross examination, DW1 clearly admitted that he was director of V3 engineers company since 2000, then he become promoter of V3 engineers company. After he became promoter to V3 engineers company, he lookafter production line, he well knew about daily transactions of production 29 C.C.NO.6109/2018 SCCH-26 unit, he pleaded ignorance about how much time complaiannt company funding to the V3 engineers company, how much amount invested by the complainant company in V3 engineers company. DW1 specifically deposed that Sachin Khimji came to his contact through one Guruprasad. Further DW1 stated during course of cross examination that he never knew about the complainant company is a invested company, he came to knew about complainant company was a invested company after he appeared before this court. Further DW1 clearly and categorically denied the suggestions of complainant that the complainant company invested money in V3 engineers company. At the time of investment, complainant company and V3 engineers company had entered with written agreement with terms and conditions. While exiting from V3 engineers company, the complainant company has made proposal to the directors of V3 engineers company to purchase back shares of V3 engineers company. Further it is elicited through the mouth of DW1 that the V3 engineers company had financial loss in the year 2017 2018. Therefore the company decided to sell assets of V3 engineers company. Further it is deposed by DW1 that the consent of complainant for selling assets of V3 engineers company required, they sold assets of V3 engineers company to one Suresh Kumar Chopra in the year 2018. Further DW1 admtited and undertook during course of cross examination that he would 30 C.C.NO.6109/2018 SCCH-26 produce sale deeds which is pertaining to assets of V3 engineers company before this court. Further it is elicited from the mouth of DW1 during course of cross examination that the V3 engineers company had took loan from SBI bank and Exim bank, the said loan cleared, but he did not know actual date of cleared loan of V3 engineers company in SBI and Exim bank. The SBI and Exim bank have issued NOC. The said NOC in the possession of one Guruprasad. DW1 specifically admitted during course of cross examination that his name mentioned as ExD15. Further during course of cross examination of DW1, the counsel for complainant confronted some documents through DW1 which were marked as ExP16 to P18. During course of cross examination, DW1 clearly admitted that xxxxxxxxxxxxxxxxxx Further he stated during course of cross examination that V3 engineers company was debt base company, there is no funding from complainant company. Further he stated that after purchase of share, shares allocate PW1 and same purchased by PW1 in the year 20102011. They purchased worth of Rs.30 lakhs at the time of investment. Further DW1 stated during course of cross examination that the PW1 came to contact to V3 engineers company after the V3 engineers company did some other work to complainant company. Further he denied the suggestion of complainant that at the time of exit from complainant company, accused along other promotor 31 C.C.NO.6109/2018 SCCH-26 directors of company had agreed to purchase entire share holding of the complainant company in proportion to their share holding in the company. Further DW1 admitted that the V3 engineers company took decision in the year 2015, 2016 for sell assets of V3 engineers company. Further DW1 clearly and categorically admitted that the assets of V3 engineers company sold in the year 2017 i.e., land and building, machineries. Further DW1 admitted that they not produced sale deed of said assets before this court. Further DW1 undertook he would produce the said sale deed before this court and further DW1 voluntarily deposed before court that the V3 engineers company liquidated by the order of NCLT. Further it is admitted by DW1 that V3 engineers company had cleared loan raised from the SBI bank and Exim bank. Further dW1 clearly admitted that he did not produced NOC given by SBI bank. Further he stated that the said NOC not in possession of accused. Further it is elicited during course of cross examination that he did not remember when company cleared loan of Exim bank. Further DW1 stated during course of cross examination that NOC given by Exim bank not produced before this court and voluntarily DW1 stated that the said NOC not with the possession of accused. Further it is elicited during course of cross examination that the complainant company invested money in the year 2010 and denied at the time of investing agreement entered between both parties. 32 C.C.NO.6109/2018
SCCH-26 During course of cross examination, ExP8 to 12 documents marked through confrontation i.e., sale agreement dt.2952010 and 972010.Email conversation between accused and complainant. Further DW1 denied the suggestion of complainant that before signing ExD2, he withdrawn cheques given at the time of execution of ExD1 and then accused issued fresh cheques to complainant, but accused stated as no remember. Further it is elicited during course of cross examination that at the time of execution of ExD1 the complainant took signatures of accused on ExD1 forcefully and they did not took any legal action against for the act committed by complainant. Further DW1 denied the suggestion of accused that he signed on ExD1 out of freewill. Therefore they did not took any legal action against PW1. Further DW1 denied the suggestion of complainant that after registered this case against accused, he took false defence i.e., PW1 took signature on ExD1 on force. Further DW1 admitted during course of cross examination that in the year 2017, he started Neo alchemi build India LLP. In that company accused and PW1 had designated partners. He changed his email address after establishment of neo alchemi build India LLP as [email protected]. Further it is elicited during course of cross examination that at the time of execution of ExP1 get all the opinion from directors of accused company. But DW1 answered not remember. Further it is elicited during course of cross 33 C.C.NO.6109/2018 SCCH-26 examination that before signing ExP1, draft copy of the same forwarded to all, they verified personally, then finalized by all the parties, but witness stated no remember. Further it is elicited during course of cross examination that accused did not remember after sign on ExP1 when ExD5 and 8 sent by PW 1 to accused. Further he stated that it could not possible to him what are all contents contained in reply notice. Further it is admitted by DW1 that in Ex D8 date mentioned as 10122019.
ನಪ 1 ಕಕ ಸಹ ಮಡದ 10 ತತಗಳ ನತತರ ನಪ1 ತಪಪ ಎತದದ ನನನಟನಸ ಕನಟಟದವ ಎತದರ ಸರ. ಈ ಪ ಪಕರಣದಲ ವರತಟ ಆದ ನತತರ ನಡ 8 ನದ ನ after thought ಕನಟಟದನ ಎತದರ ಜಪನ ಇಲಲ.
17. Further DW1 clearly admitted that ExP2 belongs to his bank account and bear signature on ExP2 was belongs to accused and the signature found on ExP1 in all the pages belongs to accused. So there is no dispute regarding signatures found on ExP1 and 2. Further DW1 denied other formal suggestions of complainant.
18. The main defence of the accused in this case that the complainant had no locusstandi to lodge complaint against this accused,there is no order of board of resolution from the company and no authorization from the company to prosecute this case through PW1 against accused. The accused counsel mainly stress during course of argument regarding admission of PW1 34 C.C.NO.6109/2018 SCCH-26 in cross examination page 1, 10th line i.e., ನ ದಖಲಸದವ ಪವರದಲ board of directors ರ ವದನಟತಗನನ ದ ಈ ಪ ಪಕರಣವನದ ನ ಪಸಮಡಲಲ.
ನಡಸಲಲ ಮತದತ ಯವದನ ನಡವಳಗಳನದ
19. So as per this admission, the accused counsel mainly prayed before this court the PW1 had no locusstandi to proceed with this complaint. Hence pray for dismissal of complaint on this score only. To the contrary, the counsel for complainant took this court attention regarding board resolution passed by the company dated 2452019 which has been filed by complainant at the time of filing of complaint. The said document was in the file but not marked on behalf of complainant. On perusal of document, i.e., "extract of the minutes of the meeting of the board of directors of Sachin Khimji Nuvo investors and realtors pvt., Ltd., held on friday 24 th day of May 2019 at the registered office of the company at 11.00 a.m." The said above document clearly indicates that the Sachin Khimji director of the company authorised by the company to institute, commence, prosecute, carry on, or defend or resist ....... to appoint and engage any solicitor, pleader, counsel or advocate and to sign and execute warrant of attachment or agreements or other authority to act and plead and to incur all necessary expenses in that behalf. Further learned complainant counsel placed reliance on Hon'ble Apex court decision in case between Bhupesh Rathod Vs Dayashankar prasad 35 C.C.NO.6109/2018 SCCH-26 chaurasia and others AIR 2021 SC 5726 wherein Apex court held in that the complaint was accompanied by board of resolution of the company dt.175 2006 authorising Mr.Bhupesh Rathod to initiate legal action agaisnt the respondent on behalf of the company. On 24122017, the company filed an affidavit through its Managing director i.e., Mr.Bhupesh Rathod stating that it had authorised him through the above mentioned board resolution to file a complaint case against this respondent. Further Apex court stated that "if a complaint was made in the name of company it is necessary that a natural person represents such juristic person in the court and court looks upon the natural person for all practical purposes. It is in this context that observation were made that the body corporate is a dejure complaint while the human being is a defacto complaint to represent the person whose statement was taken on oath alone can continue to represent the company till the end of the proceedings. Thus, no magistrate could insist that the particular person whose statement was taken on oath alone can continue to represent the company till the end of the proceedings. Not only that even if there was initially no authority, the company can at any stage rectify that defect by sending a competent person". In view of the position of law laid down by the Hon'ble Apex court dt.10112021 the authority for prosecuting in the court on behalf of 36 C.C.NO.6109/2018 SCCH-26 company is a rectifiable defect it can rectify at any stage of proceedings. So in the instant case, the complainant produced board of resolution dt.2452019, the said document clearly authorised and board of directors resolved PW1 to prosecute this case against accused on behalf of company. The PW1 clearly stated in his affidavit he has been authorised by the complainant company. The PW1 was director of complainant company. In this background, there is a clear authority from complainant company to prosecute this case. Hon'ble Apex court also held non production of authority can be rectified at any stage of proceedings. Therefore the defence took by accused in view of the above discussion cannot be sustainable.
20. Further the second limb of defence of accused that as per section 138 of N.I Act whether preexistence of debt appears and documents relied by complainant are void agreement, there is no free consent from accused. Therefore this complaint not maintainable on this score also. During course of arguments, learned accused advocate vehemently submitted that the complainant company invested in V3 engineers company as per ExD1, the execution of ExD1 is under cloud. The complainant has habit of taking signatures of many persons on blank papers. PW1 suppressed material facts and preferred this complaint against this accused to claim illegally. ExP8 and 9 confronted through DW1 as per complaint they first entered settlement 37 C.C.NO.6109/2018 SCCH-26 agreement on 10122018, some of the signed cheques handed over to Escrow agent, what is the necessity to enter ExP8 and 9. V3 engineers company liquidated due to financial crises the complainant company taking undue advantage of the situation and circumstances share holder was to sign the special resolution to facilitate the sale transaction of the company assets, the complainant company director compelled the directors of V3 engineers company to sign on agreement in the name and style of share purchase agreement through his advocate and obtained signed blank cheques from directors of the company V3 engineers pvt., Ltd., it was duly intimated complainant company director on 10122019 as per ExD8, but complainant intentionally refused to receive the same. Therefore ExD1 and D2 are created by complainant under duress. In this background, peruse the oral evidence and documentary evidence of both parties it is forthcoming that Ex D1 entered between complainant company and directors of V3 engineers company on 2332018, some signed cheques of directors of V3 engineers company and shares of V3 engineers company handed over to one Escrow agent as per terms and conditions prescribed in ExD1. Further it is relevant to mention in ExD1 Article 3 in 3.5 and 3.6 the escrow agent shall act under the instructions of the seller only and shall not use his discretion in any manner whatsoever. So as per this term escrow agent act upon the instructions of 38 C.C.NO.6109/2018 SCCH-26 seller i.e., complainant company. Therefore signed blank cheques of directors of V3 engineers company handed over to complainant company director and escrow agent having preferential shares of V3 engineers company till date. Admittedly preferential shares of V3 engineers company which was hold by complainant company director still stood in the name of complainant company director. The cheque in question of this case handed over by the escrow agent to complainant company director. As per ExD2 the earlier agreement entered between complainant company and directors of V3 engineers company was not acted upon for the various reasons. Therefore they again entered another agreement as per ExD2 on 2762018. The directors of V3 engineers company again issued fresh cheques as details mentioned in ExD2 by all the 3 directors of V3 engineers company. Again as per ExD2 fresh signed cheques of all the directors of V3 engineers company handed over to escrow agent Mrs.Jayashree Murali. As per ExD2 at page 3 at para 3 share holders 1 to 3/directors of V3 engineers company acknowledge the return of their earlier cheques deposited with the escrow agent as returned by the escrow to them. Further it is pertinent to mention the content of ExD2 para 2 at page 3 " the share holders 1 to 3 agree, accept and acknowledge that the seller is entitle to present the cheques for realization at any time by putting the dates as deemed fit by the seller if the share holders 1 to 3 39 C.C.NO.6109/2018 SCCH-26 herein do not complete the transaction of acquisition of the shares held by the seller in the company on or before". So as per this terms the seller/director of complainant company had right to present cheques which were deposited with escrow agent at any point of time as deemed fit by the seller if the share holders i.e., directors of V3 engineers company do not complete the transaction of acquisition of shares of complainant. The accused himself suggested PW1 during course of cross examination that in page 8 at 9th line ನನದ ವ3 ಇತಜನಯರರ ಕತಪನಯ 30 ಪರರತಟ ಶನರದ ಪ ಪಮಣ ಪತ ತ ಹನತದದದರತದ ವ3 ಇತಜನಯರರ assets ನದ ನ ಮರಟ ಮಡಲದ ನನನ ಸಮಮ ತ ಅಗತತ ಎತದರ ಸರ. ಆ ಸತದರಭದಲ ವ3 ಇತಜನಯರರ ಕತಪನಯ ಎಲ ಲ ಡಡರಕಟರ ಗಳದ ನನನನದ ನ ಒಳಗನತಡದ ಮನಲ ತಳಸರದವ ವಚರದ ಬಗಗ ಚರರಸಲದ ಮನಟತಗ ಕರದದದರದ ಎತದರ ಸರ. ಸದರ ಮನಟತಗ ನಲ ಶನರದ certificates ಪತ ತ ಬರದದಕನಡದನ ಇದದ ಪಕದಲ ನನದ ವ3 ಇತಜನಯರರ ಕತಪನಯ ಸಸರಸತಯನದ ನ ಮರಟ ಮಡಲದ ಸಮಮ ತ ಕನಡದವದಲಲ ಎತದದ ಹನಳದನ ಎತದರ ಸರಯಲಲ . ವ3 ಇತಜನಯರರ ಕತಪನಯ ಎಲ ಲ ನದನರಶಕರದಗಳದ ಕತಪನ ಹನತದದದ ಆರರಕ ಪರಸಸತಯತದ ಹನರಬರಲದ ಕತಪನಯ ಎಲ ಲ ನದನರಶಕರದಗಳದ ಕತಪನ ಹನತದದದ ಆರರಕ ಪರಸ.ತಯತದ ಹನರಬರಲದ ಕತಪನಯ assets ನದ ನ ಮರಟ ಮಡಲದ ಳ ವ ಉದಶಕಕಗ share purchase agreement ಗ ಸಹ ಮಡ ನನನ ಅನದಮತ ಪಡದದಕನಳದ ಕನಟಟರದ ಎತದರ ಸಕ ನನದ ನದನರಶಕರದಗಳಗ ಒತತಡ ಮಡರಲಲಲ ಎತದದ ಹನಳದತತರ. share purchase agreement ಗ ಸಹ ಮಡದ ನದನರಶಕರದಗಳಗ ಮನವ ಮಡದರ ಎತದರ ಸಕ 40 C.C.NO.6109/2018 SCCH-26 ಪರಸಪರ ಮತದಕತ ಮಡಕನತಡದದರತದ share purchase agreement ಗ ಸಹ ಮಡ ಕನಟಟರದ ಎತದದ ಹನಳದತತರ . share purchase agreement dated 2332018 ಶನರದಗಳನದ ನ ಖರನದ ಮಡಲದ ಆಗರದವ ಕರರದ ಪತ ತ ಎತದರ ಸರ . ವ3 ಇತಜನಯರರ ಕತಪನಯ 30 ಪರರತಟ equity shares ನನನ ಬಳ ಇವ ಎತದರ ಸರ. ನನನ ಮದಖತತರ 30% of original equity shares certificates escrow ಸಸಧನನಕಕ ಕನಟಟದ ಎತದರ ಸರ. ವ3 ಇತಜನಯರರ ಕತಪನಯ ಇತರ ನದನರಶಕರದಗಳದ ಗದರದಪ ಪಸದ ಮತದತ ಇತರರದ ಮನಲ equity shares certificates ಗಳನದ ನ escrow ಕಡಯತದ ಪಡದದಕನತಡಲಲ ಮತದತ ಅವರ ಹಸರಗ ವಗವರಣ ಮಡಕನತಡಲಲ ಎತದರ ಸರ. ಇಲಯವರಗನ ನದನರಶಕರದಗಳಗ ವ3 ಇತಜನಯರರಕತಪನಯ 30% equity shares ನನನ ಹಸರನಲ ಇವ ಎತದರ ಸರ . Equity shares certificates dated 2332018 ಇಲಯವರಗನ acted upon ಆಗಲಲ ಎತದರ ಸರ .
21. So as per above suggestions made by accused, it is proved before this court that the accused is the founder director of V3 engineers private limited company, the complainant company had invested money in the company in convertible preference shares which were subsequently converted into equity shares of the company. The complainant holding 30% of paidup capital of the company. The present accused and other directors of V3 engineers company were holding 70% of paidup capital of the company. Further it is also relevant to mention the suggestion of accused. In page 8 at 14th line the V3 engineers company called special meeting for getting consent of all the board of directors for sell assets of V3 engineers company. The 41 C.C.NO.6109/2018 SCCH-26 complainant also consented for selling assets of V3 engineers company. Accordingly share purchase agreement prepared and draft copy of share purchase agreement circulated or shared through Email between escrow agent and directors of V3 engineers company. The accused also made some suggestions for preparing share purchase agreement. Further it is pertinent to mention condition prescribed in settlement agreement i.e., ExP1 that at page 2 in para 1, 2nd line "The company had extended financial assistance to the tune of Rs.11 crores only (Eleven crores only) as preference capital which was subsequently converted in equity capital of V3 engineers whereas one of the terms on which the financial assistance was extended by the company was that the promoters of V3 engineers including the purchaser herein would proportionately buyback the equity shares held by the company in V3 engineers at the rate to ensure that a minimum sum of Rs.6,87,00,000/ is repaid to the company on the equity shares held by the company in V3 engineers and the directors of V3 engineers company have agreed exit to the complainant".
22. Accordingly complainant and accused entered ExP1, the accused issued some post dated cheques to the possession of escrow agent. Due to various reasons, the accused did not arranged money for settle the complainant company amount. Therefore accused and complainant company 42 C.C.NO.6109/2018 SCCH-26 again entered ExD2. The complainant company escrow agent returned earlier blank signed cheques to accused and other directors of V3 engineers company have issued fresh signed cheques to the complainant company as per terms and conditions of ExD2. It is elicited during course of cross examination from the mouth of DW1 that ವ3 ಇತಜನಯರರ ಕತಪನಗ ಇದದತತಹ assets ಗಳಲಲವನನ ನ ಮರಟ ಮಡದವ.
assets ಗಳತದರ land and building machineries. ವ3 ಇತಜನಯರರಕತಪನಯ assets ಗಳನದ ನ ನ ನತಯಲಯಕಕ ಕನಟಟಲಲ . ಅದನದ ಮರಟ ಮಡರದವ ಪತ ತವನದ ನ ನತಯಲಯಕಕ ಕನಡಲದ ತನತದರ ಇಲಲ . ಸಕ ಸಸತತ NCLT ಇತದ liquidate ಆಗದ ಎತದದ ಹನಳದತತರ. ವ3 ಇತಜನಯರಪರ ಕತಪನ SBI ಬತಕತದ ಮತದತ Exium ಬತತಕನತದ ಸಲ ಪಡದತದತ . ಎರಡನ ಬತತಕದಗಳಗ ಸಲ ಮರದಪವತ ಮಡಲಯತದತ. ಪವತ ಮಡದ ಖರತ ದನತಕಗಳದ ನನಗ ಗನತತಲಲ. ಸಲ ತನರದವಳ ಆಗರದವ ಬಗಗ ಎಸ.ಬ.ಐ. ನವರದ NOC ಕನಟಟದದರದ. ಅದನದ ನ ನತಯಲಯಕಕ ಕನಟಟಲಲ. Exium ಬತತಕನತದ ಪಡದದಕನತಡ ಸಲ ಯವಗ ತನರದವಳ ಮಡದವತದದ ಹನಳಲದ ನನಗ ಜಪಕ ಇಲಲ. Exium ಬತತಕ ನ NOC ದಖಲ ನತಯಲಯಕಕ ಕನಡಲದ ತನತದರ ಇದ ಯ ಎತದರ ಸಕ ನಮಮ ಬಳ ಇಲಲ ಎತದದ ಹನಳದತತರ.
23. Further it is confronted through DW1 during course of cross examination by the complainant, ExP8 to 12, the accused himself admitted his Email ID and Email conversation made between accused and escrow agent and with complainant. The accused gave evasive answer during course of cross examination, the same has been extracted below: 43 C.C.NO.6109/2018 SCCH-26 ನಪ 1 ಆಗದವಗ ನಮಮ ಅಭಪಪಯಗಳನದ ನ ಪಡದದ ನತತರ ಸಹ ಮಡದವ ಎತದರ ಸಕ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ . ನಪ1 ಕಕ ಸಹ ಮಡದವ ಮದಲದ draft ಗಳನದ ನ ತಯರಸ ನ ಎಲಲರಗನ ಕಳದಹಸ ಅದನದ ಅದರ ನಕಲದಗಳನದ ನ ಒದ ಸಹ ಮಡಕನಟಟ ದರ ಎತದರ ಸಕ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ. ನಪ 1 ಕಕ ಸಹ ಮಡಕನತಡ ನತತರ ನಡ 5 ಮತದತ 8 ನದ ನ ಸರನ ಕಮಮ ರವರದ ಯವಗ ಕಳದಹಸದದ ರತದದ ಈಗ ಹನಳಲದ ಜಪಕ ಇಲಲ . ನಡ8 ರಲ 10122019 ಎತದದ ಬರದದ . ನಪ 1 ಕಕ ಸಹ ಮಡದ 10 ತತಗಳ ನತತರ ನಪ 1 ತಪಪ ಎತದದ ನನನಟನಸದ ಕನಟಟದವ ಎತದರ ಸರ . ಈ ಪ ಪಕರಣದಲ ವರತಟಆದ ನತತರ ನಡ 8 ನದ ನ After thought ಕನಟಟದನ ಎತದರ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ .
24. Further during course of cross examination, DW1 clearly and categorically admitted cross examination dated 822022 that the DW1 himself verifying ExP1 and 2, he admitted signature found on ExP1 and 2 belongs to him and the bank account pertaining to ExP2 is belongs to him.
25. The main defence of the accused that the V3 engineers company faced financial problem, due to this situation, the complainant get signatures on ExP1 under duress The complainant company had 30% of capital share in V3 engineers company, the complainant had dominate position to dominate directors. Therefore the accused signed on ExP1 and complainant collected signed cheques of accused, thereby he misused signed cheques of accused and filed false case against accused. To substantiate his defence the accused 44 C.C.NO.6109/2018 SCCH-26 himself examined as DW1 and produced 12 documents. It is elicited during course of cross examination by the complainant that ನಡ 1 ನದ ನ ಮಡದವಗ ನಮ ನ ಒತತಯ ಪನವಕರವಗ ಮತದತ ಸಹ ಮಡರದವ ಮ ಸಹಗಳನದ ಖಲ ಚಕದ ನ ತಗದದಕನತಡರತದದ Sachin khimji ವರದದದ ಯವದನ ಕ ತಮ ಕಡಗನತಡಲಲ.
ಕ ಗಳನದ Further it is relevant to mention another portion of cross examination that ನಪ 1 ಆಗದವಗ ನಮಮ ಅಭಪಪಯಗಳನದ ನ ಪಡದದ ನತತರ ಸಹ ಮಡದವ ಎತದರ ಸಕ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ . ನಪ1 ಕಕ ಸಹ ಮಡದವ ಮದಲದ draft ಗಳನದ ನ ತಯರಸ ನ ಎಲಲರಗನ ಕಳದಹಸ ಅದನದ ಅದರ ನಕಲದಗಳನದ ನ ಒದ ಸಹ ಮಡಕನಟಟದರ ಎತದರ ಸಕ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ. ನಪ 1 ಕಕ ಸಹ ಮಡಕನತಡ ನತತರ ನಡ 5 ಮತದತ 8 ನದ ನ ಸರನಕಮಮ ರವರದ ಯವಗ ಕಳದಹಸದರದ ಎತದದ ಈಗ ಹನಳಲದ ಜಪಕ ಇಲಲ . ನಡ8 ರಲ 10122019 ಎತದದ ಬರದದ . ನಪ 1 ಕಕ ಸಹ ಮಡದ 10 ತತಗಳ ನತತರ ನಪ 1 ತಪಪ ಎತದದ ನನನಟನಸದ ಕನಟಟದವ ಎತದರ ಸರ . ಈ ಪ ಪಕರಣದಲ ವರತಟಆದ ನತತರ ನಡ 8 ನದ ನ After thought ಕನಟಟದನ ಎತದರ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ .
26. Further DW1 clearly admitted his official Email ID during course of cross examination at page 6 in 7th line guru@v3india.com and admitted he conversant with complainant through this email since 2016. The DW1 gave evasive answers during course of crossexamination.
ನಡ 1 ರ draft ನದ ನ official email ID ಗ ಕಳಹಸದ ನತತರ ಪರಶನಲನ ಮಡ ನತತರ finalise ಆಗತದತ ಎತದರ ಸಕ ನನಗ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ. ನಡ 1 ನದ ನ ಮಡದವ 45 C.C.NO.6109/2018 SCCH-26 ಸಮಯದಲ ನನಡದದ ಚಕದ ನ ಹತದಕಕ ಪಡದದಕನತಡದ ನಶನ ಡ 2 ನದ ಕ ಗಳನದ ನ ಮಡದವಗ ಹನಸ ಚಕದ ನ Sachin Khimji ರವರಗ ಕನಟಟದರ ಎತದರ ಸಕ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ ಕ ಗಳನದ . ನಪ 1 ಕಕ ಸಹ ಮಡಕನತಡ ನತತರ ನಡ 5 ಮತದತ 8 ನದ ನ Sachin Khimji ಯವರದ ಯವಗ ಕಳದಹಸದದರದ ಎತದದ ಈಗ ಹನಳಲದ ಜಪಕ ಇಲಲ . ನಮಮ ವಕನಲರದ ತಯರದ ಮಡದ ಪ ಪತತ ದತತರ ನನನಟನಸ ನ ಒಳತಶಗಳ ಬಗಗ ನನಗ ಹನಳಲದ ಜಪಕ ಇಲಲ . ನಪ 1 ತಪಪ ಎತದದ ನಪ1 ಕಕ ಸಹ ಮಡದ 10 ತತಗಳ ನತತರ ನನನಟನಸಕನಟಟದವ ಎತದರ ಸರ . ಈ ಪ ಪಕರಣದಲ ವರತಟಆದ ನತತರ ನಡ 8 ನದ ನ after thought ಕನಟಟದನ ಎತದರ ಜಪಕ ಇಲಲ ಎತದದ ಹನಳದತತರ.
27. On careful analyze entire evidence and documents, it is clear that the complainant company and accused had entered ExD1 on 10122018 by agreeing terms and conditions. Before conclude ExD1 both have expressed their opinion for preparing ExD1. As per ExD1 terms and conditions accused and other directors of V3 engineers company has handed over their signed cheques to complainant and cheques have been kept in the custody of escrow agent. For various reasons, the terms and conditions of Ex D1 not performed. Thereafter accused and other directors of V3 engineers company entered ExD2, they have issued signed cheques. The present accused and wife executed ExP1 in favour of complainant. He issued 10 cheques as duly described in article 2 of ExP1 for collateral and security for acquisition of balance shares for sum of Rs.2,30,00,000/. ExP2 was a cheque bearing No.14378 dt.3132019. ExP2 number clearly mentioned in ExP1. 46 C.C.NO.6109/2018
SCCH-26 The complainant issued legal notice after dishonour of cheque i.e., ExP2 through his advocate on 1052019. The said legal notice duly delivered on accused on 1352019 as per ExP6 & 7. No reply given by the accused within its statutory time. This complaint presented before this court on 3052019 and cognizance taken by this court on 2462019. Accordingly this court issued process against accused. ExD5 issued by accused to complainant on 28112019. The 2nd notice i.e., ExD8 issued by the advocate for accused to complainant on 10122019. DW1 did not explained during course of cross examination, what he instructed to his advocate for sending notice to complainant. Further DW1 clearly admitted the said notice issued after 10 months issuance of legal notice by the complainant. Though DW1 denied the suggestion of complainant ExD5 and 8 issued after thought but it is clearly demonstrate through admission by the accused that though he received statutory notice which is sent by complainant on 1352019 when he received process by this court, he sent evasive reply or notice to complainant after thought. The accused absolutely failed to prove before this court, the complainant get signatures on ExP1 and signed cheques under duress. It is not possible to accept defence of the accused, no prudent man kept without answering notice sent by complainant though he received on 1352019. If complainant get accused signatures on ExP1 and took signed cheques under 47 C.C.NO.6109/2018 SCCH-26 duress for what reason accused prevented to took necessary legal action against complainant and his company. The DW1 clearly admitted before this court, the signature found on ExP1 and 2 was belongs to him and the bank a/c pertaining to ExP2 belongs to accused. It is not a case of accused that he has been not served any notice from complainant. Though accused received statutory notice which is issued by complainant on 1352019, after thought he sent ExD5 and 8 on 10122019 and 28112019. The defence of accused does not sustainable because the accused himself clearly and categorically admitted he did not replied at appropriate time to the notice sent by complainant and he did not took any legal action against complainant well in time for misusing his signed cheques and got signature of accused on ExP1 under duress. DW1 clearly and categorically admitted signatures on ExP1 and 2. During course of argument, the learned counsel for accused placed much reliance on decision rendered by Hon'ble High court of Karnataka in Venkatesh Bhat Vs Rohidas Shenoy 2010 Cr.LJ 1061, T.T.Naveen Kumar Vs B.Some Gowda 2012 (2) AIR KAR R649, wherein held in this case that " transaction between accused and claimant was of civil nature and cheque issued with respect to agreement to sell not issued in discharge of any legal liability". Wherein Venkatesh Bhat Vs Rohidas Shenoy case held that "the alleged cheque issued by accused to complainant under an 48 C.C.NO.6109/2018 SCCH-26 agreement entered between them if there any violation of terms of agreement by accused, remedy open to complainant to take appropriate steps before civil court and not criminal court". This court meticulously gone through the facts and circumstance and proposition of law laid down by the Hon'ble High court of Karnataka. In the instant case, the accused and complainant entered share purchase agreement and they themselves put some terms and conditions, in agreement itself the accused issued cheques, in default of payment as agreed by accused, the complainant got right for presentation of signed cheque for collection. Taking legal action against accused on the basis of negotiable instrument and taking steps on agreement both are parallel proceedings, there is no bar under law to take action under NI Act on Negotiable Instrument. In the instant case accused issued signed cheques to the possession of complainant and accused himself permitted complainant for presenting cheque under the agreement. Therefore from this court opinion the complainant got remedy before this court on ExP2. Under these facts and circumstances, the decision relied by accused not helpful to the case of accused. To the contrary the counsel for complainant much placed reliance on decisions of Hon'ble Apex court in case between Modi Cements Ltd., Vs Kuchil Kumar Nandi 1998 (3) SCC 249 wherein Apex court held "that even if a cheque dishonoured because of stop 49 C.C.NO.6109/2018 SCCH-26 payment instructions to bank Section 138 would get attracted". In case between K.N.Beena Vs Muniyappan and another 2001(8) Scc 458 wherein Apex court "held that the burden of proving that a cheque has not been issued for debt or liability is an accused". In case between J.M.Company Vs T.Ravichandran 2003 Crl.J. 2890 Hon'ble Madras High court held that "presumption of liability as provided u/s 138 in favour of holder of cheque is that unless contrary proved which shall be presumed that holder received cheque of nature referred in section 138 for discharging whole or in part of any debt or other liability". In case between Rangappa Vs Mohan 2010 (11) SCC 441 wherein Apex court held that "presumption mandated by Section 139 includes a presumption that there is exists a legally enforciable debt or liability. However such presumption is rebuttal in nature". In case between Kalamani Vs P.Balasubramaniyan 2021 (5) SCC 283 wherein Apex court held that "once signature on cheque admitted court ought to have presumed that the cheque was issued as consideration for a legally enforciable debt. Though accused took defence that only a blank cheque and signed blank stamp papers were given to the respondent held immaterial". In case between 50 C.C.NO.6109/2018 SCCH-26 Triyamabk S.Hegde Vs Sripad wherein Apex court held that "once the execution of cheque admitted section 139 of the Act mandates a presumption that the cheque for the discharge of any debt or other liability. The gravity of complaint under NI Act cannot be equated with an offence under the provisions of Indian Penal code 1860 or other criminal offence". In case between Ripudaman Singh Vs Balakrishna 2019(4) SCC 767 wherein Apex court held that "cheques were issued under and in pursuance of the agreement to sell though it is a well settled that an agreement to sell does not create any interest in immovable property it nonetheless constitutes a legally enforciable contract between parties to it. A payment which is made in pursuance of such an agreement is hence a payment made in pursuance of a duly enforceable debt or liability for the purpose of section 138". In case between T.R.Srinivasaiah Vs Chikkamangalore district cooperative central bank Ltd., Chikkamangalore Hon'ble single bench High court of Karnataka held that "once signature on cheque admitted presumption should draw in favour of holder of the cheque u/s 118 and 139 of the Act to the effect that the cheque was issued for consideration and towards discharge of debt or liability. 51 C.C.NO.6109/2018
SCCH-26 Therefore the burden was on the accused to discharge the said presumption".
In case between Sri.Dhaneshwari Traders Vs Sanjay Jain and another 2019 (16) SCC 83 wherein Apex court held that presumption u/s 139 of NI Act rebuttal though accused took defence that subject cheques were issued as security towards goods supplied for which payment was subsequently made by cash could not be estbalished, as sum purchases were paid for in cash and others by cheque. Evidence produced by the complainant was sufficient to raise presumption u/s 139 in respect of cheques.
22. The cheque is an instrument comes under the N.I Act holder in due course of the cheque, has got good title over the cheque. Therefore on the basis of evidence of PW1 and documentary evidence it clearly establish that the accused issued the disputed cheque to the complainant for legally dischargeable debt. The complainant has complied all essential ingredients of Sec.138 of NI Act. When complainant complied all essential ingredients of Sec.138, as per Sec.139 of NI Act the cheque is issued for legally recoverable debt.
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23. On careful examination of all the documents of complainant, it is very clear that the complainant filed this complaint well within time and complied all the ingredients of Section 138 of N.I. Act 1881. The presumption Under Section 139 of the NI Act is a presumption of law, it is not a presumption of fact. This presumption has to be raised by the court in all the cases once the factum of dishonor is established. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttable evidence depends on the facts and circumstances of each case. Such evidence must be sufficient to prove the case. Therefore a mere explanation is not sufficient to rebut this presumption of law. This court being guided by the preposition of law laid down by Hon'ble Apex court which is relied by the complainant which are as follows; Modi Cements Ltd., Vs Kuchilkumar Nandi 1998 (3) SCC 249 K.N.Beena Vs Muniyappan and others 2001 (8) SCC 458 Rangappa Vs Mohan 2010 (11) SCC 441 Kalamani Tex and another Vs P.Balasubramaniyan 2021 (5) SCC 283 Triyambak S.Hegde Vs Sripad 2021 SCC online SC 788 Birsingh Vs Mukesh Kumar 2019 (4) SCC 197 Ripudaman Singh Vs Balakrishna 2019 (4) SCC 767 53 C.C.NO.6109/2018 SCCH-26 T.R.Srinivasaiah Vs Chikkamagalur District cooperative Central Bank Ltd., (Criminal Revision No.109/2017) Sri.Dhaneshwari Traders Vs Sanjay Jain and another 2019 (16) SCC 83 Jayam company Vs T.Ravichandran 2003 CR.L.J. 2890High court of Madras It is profitable to refer the decision relied by the complainant and relied Hon'ble Apex court recent decision passed in Criminal Appeal No.123/2021 arising out of special leave petition (criminal) 1876/2018 between M/s Kalamani Tex and another Vs P.Balasubramanian disposal date on 10022021 (three judges bench). In this case, Apex court held that, "once signature on cheque admitted by the accused, court ought to have presume that, cheque was issued as consideration for a legally enforceable debt."
24. It is pertinent to refer and relied Hon'ble Apex court recent decision passed in Criminal Appeal No.292/21 between Sumethi Vij Vs. M/s Paramount Tech FAB Industries (Division Bench) disposed dated 9.3.2021 In this case Apex Court held that 54 C.C.NO.6109/2018 SCCH-26 under Section 139 of the Act, a presumption is raised that holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced by the accused which on preponderance of probability (not beyond reasonable doubt as in the case of criminal offence. Must then be proved.
25. Further Apex court clarified that there is a mandate of presumption of consideration in terms of the provision of the Act under Section 118 and 139 of Negotiable Instrument Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of section 138 of the NI Act.
26. As per N.I. Act, the presumption is in favour of holder of cheque. Here, the holder of cheque is complainant and presumption is in favour of complainant. It is burden on the accused to rebut the above presumption. As per Section 118 of N.I Act, presumption has to be raised by the court in all the cases once the factum of dishonour is established, but it is rebuttal presumption. The onus of 55 C.C.NO.6109/2018 SCCH-26 proof to rebut this presumption lies on the accused. The standard of such rebuttal evidence depends on the facts and circumstances of each case. Such evidence must be sufficient, cogent and should prove beyond any reasonable doubt. The accused has not taken and proved defence to rebut the presumption of law available in favour of the complainant envisaged U/s 118 r/w section 139 of NI Act. Accordingly the case of the complainant is acceptable as the complainant has proved that accused has intentionally without having sufficient money in his account and issued disputed cheque. Therefore, a mere explanation is not enough to repel this presumption of law. Further it is burden on accused to prove or explained before court in what circumstances, his signed cheque goes to possession of complainant, but in the instant case, accused failed in discharge his onus and burden to explain above facts.
27. Therefore in my considered view, the complainant has established his case by way of documentary as well as oral evidence. Being accused liable to pay outstanding due amount of Rs.60,00,000/ to the complainant. Hence my answer to point No.1 to 3 in the Affirmative.
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28. Point No.4: Since this court has already held that the cheque in question was issued towards discharge of legally enforceable debt and the accused has committed an offence U/s 138 of NI Act. It is worth to note that the offence is of the nature of civil wrong. This court has power to impose both sentence of imprisonment and fine on the accused. This court is of the opinion that it is appropriate to impose the sentence of fine only on the accused, instead of sentencing him to undergo imprisonment. Hon'ble supreme court of India in a decision reported in 2015(17) SCC 368 in a case of H.K.Pukhraj Vs D.Parsmal observed that having regard to the length of trial and date of issuance of cheque it is necessary to award reasonable interest on the cheque amount along with cost of litigation. By considering this case, length of trial and nature of business, this court came to conclusion, it is just and proper to grant reasonable interest along cheque amount in favour of complainant, it would meets ends of justice. In the result, I proceed to pass the the following: : ORDER : By Acting U/s 255(2) of Cr.P.C the accused is hereby 57 C.C.NO.6109/2018 SCCH-26 convicted for the offence punishable U/s 138 of NI Act.
The accused is hereby sentenced to pay fine of Rs.70,05,000/ (Rupees Seventy lakhs five thousand only) and acting U/s 357(3) of Cr.P.C. out of the total fine amount payable by the accused a sum of Rs.70,00,000/ shall be payable to the complainant as compensation and remaining amount of Rs.5,000/ shall be defrayed as state expense.
In default of payment of fine the accused shall under go simple imprisonment for a period of 6 months.
It is further made it clear that if the accused opt to undergo imprisonment, it does not absolve him from liability of paying compensation to the complainant.
Office is hereby directed to supply free certified copy of this judgment to the accused forthwith.
(Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the open Court on this the 18th April 2022) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
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SCCH-26 ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW1: Sachin B.Khimji DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT: Ex.P1 to 5 5 cheques Ex.P1(a) to 5(a) Signatures Ex.P6 to 10 5 bank memos Ex.P11 Legal notice Ex.P12 Postal acknowledgment Ex.P13 Reply notice Ex.P14 CC of share purchase agreement Ex.P15 CC of addendum share purchase agreement Ex.P16 Agreement dt.2952010 Ex.P17 Agreement dt.972010 Ex.P18 CC of share purchase agreement dt.16032018 WITNESSES EXAMINED ON BEHALF OF THE ACCUSED: DW1 : Vasu DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
Ex.D.1 Certified copy of arbitration application Ex.D.2 to 4 Acknowledgments Ex.D.5 Certified copy of Arbitration application in AA No.370/2018 Ex.D.6 Certified copy of order sheet in AA 370/2018 along with withdrawal memo dated 29062019 59 C.C.NO.6109/2018 SCCH-26 Ex.D.7 Notice dated 25102018 Ex.D.8 Unopened postal cover Ex.D.9 Reply notice dated 09112018 Ex.D.10 Postal receipt Ex.D.11 Reply by Sachin Khimji dated 20112018 Ex.D.12 Blank opened postal cover Ex.D.13 Demand notice from SBI dated 26122017 Ex.D.14 Demand notice to guarantor dated 26122017 by SBI Ex.D.15 Letter issued by SBI dated 20062018 Ex.D.16 to Ex.D.22 Notarized copy of balance sheet from 2014 to 2020 (7 in Nos.) separately marked subject to objection raised by complainant advocate regarding filing 65 B certificate Ex.D.23 Original copy of Board of resolution dated 23032018 (EGM Extraordinary General Body Meeting) Ex.D.24 Certified copy of balance sheet from 31032014 to 31032020 (14 Pages) Ex.D.25 Certified copy of NCLT order dated 21092020 (18 Pages) Ex.D.26 Certificate of incorporation of LLP Neo Alchemy Build LLP dated 17102017 Ex.D.27 Consent to act as Partner of LLP of Sachin Bharat Khimji 60 C.C.NO.6109/2018 SCCH-26 Ex.D.28 Consent to act as Partner of LLP of Guruprasad Ramachar Ex.D.29 Certificate u/s 65B of IE Act (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
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