K.G.Kutty vs Sri Raghavendra Rubber Industries Pvt. Ltd

The present Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 against the judgment, dated

03.06.2008, passed in Crl.A.No.145 of 2007, wherein the learned Special Judge for Trial of Offences under SCs & STs (POA) Act-cum-VI-

Additional Metropolitan Sessions Judge, Secunderabad, while confirming the conviction imposed against the revision petitioner/accused by the trial

Court in C.C.No.1514 of 2003, dated 26.03.2007, reduced the sentence of simple imprisonment from one year to six months for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881.

The facts of the case are as under:

The 1st respondent/complainant filed a private complaint, under Section 200 Cr.P.C., against the revision petitioner/accused for the offence punishable

under Section 138 of the Negotiable Instruments Act. It is stated in the complaint that the complainant Company is carrying on business of

manufacturing thread rubber and bonding gum solutions and the accused approached the complainant company to market the said products on credit

basis and the credit duration is for 15 days and both of them agreed for the said condition. Both the complainant and accused have entered into

Memorandum Of Understanding on 14.11.2000 and the complainant supplied the material on credit basis total worth Rs.3,54,337/- and the entire

material has been received by the accused, but he failed to make the payment as per the Memorandum of Understanding except making part payment

to a tune of Rs.45,000/- leaving a balance of Rs.3,09,325/-. When the complainant insisted for payment as per the Memorandum of Understanding, the

accused failed to make balance of payment and requested the complainant to grant some time as he was in financial difficulty and the complainant

granted time on several occasions and thereafter the accused issued two cheques bearing No.667546, dated 20.11.2002 for Rs.1,85,000/- and

No.667547 dated 20.12.2002 for Rs.1,24,325/-, drawn on State Bank of Travancore, S.B. Road Branch in favour of the complainant and when the

same were presented by the complainant in his bank, for collection, the same were retuned as ‘funds insufficient’. Therefore, the complainant

got issued notice on 18.02.2003, but the accused failed to comply with the same. As such the complainant filed a complaint for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’).

In support of the case of the 1st respondent/complainant, the Managing Director of the complainant company, examined himself as PW.1 and got

marked Exs.P.1 to P.18. Neither oral nor documentary evidence was adduced on behalf of the revision petitioner/accused. However, during the

pendency of the appeal, on a petition filed by the revision petitioner/accused, the appellate Court received Ex.D1 certified copy of judgment in

C.C.No.106 of 2005 on the file of the III-Metropolitan Magistrate, Cyberabad and Ex.D2 Form No.32 maintained under Section 303 (1) of Companies

Act of the complainant company. The appellate Court has also received Exs.P19 to P22 on behalf of the 1st respondent/complainant subject to proof

and genuineness of the documents with other evidence on record.

The trial Court, after considering both the oral and documentary evidence found the accused guilty for the offence punishable under Section 138 of the

Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.10,000/-, in

default to suffer simple imprisonment for three months and out of the fine amount, Rs.5,000/- is awarded to the complainant towards defraying

expenses under Section 357 Cr.P.C. Aggrieved by the same, the accused preferred Crl.A.No.145 of 2007 before the Special Judge for Trial of

Offences under SCs & STs (POA) Act-cum-VI-Additional Metropolitan Sessions Judge, Secunderabad. Vide judgment, dated 03.06.2008, the

learned Sessions Judge dismissed the appeal confirming the conviction imposed by the trial Court, but reduced the sentence of simple imprisonment

from one year to six months while maintaining the sentence of fine.

Heard the learned Counsel for the revision

petitioner/accused; learned Counsel for the 1st respondent/complainant and the learned Assistant Public Prosecutor for the 2nd respondent and

perused the material available on record.

The main contention of the learned Counsel for the revision petitioner/accused is that the 1st respondent/complainant (P.W.1) was not the Managing

Director of the 1st respondent Company at the relevant point of time in view of Exs.D1 and D2 and that he has not filed any authorization to file the

complaint and to give evidence before the trial Court. Learned Counsel for the revision petitioner relied upon the following judgments of various High

Courts:

Swastic Coaters Pvt. Ltd. V. Deepak Brothers and another (1997) 1 ALD (Crl.) 370 (A.P.).

M.G.Brothers Automobiles Ltd. V. B.Masthan Reddy and another (2006) 1 ALD (Crl.) 180 (AP).

Shradha Shipping Co. Pvt. Ltd. V. Adhithri Trading Company 2014 SCC Online Bm. 2273.

Learned Counsel for the 1st respondent/complainant would submit that being the Managing Director of the Company, P.W.1 needs no resolution or

authorization and that Exs.P1, P2 to P7 and Exs.P19 to P24 clearly established that P.W.1 was the Managing Director of the Company at the relevant

point of time and the same was upheld by the Courts below. Learned Counsel for the 1st respondent relied upon the judgment of the Apex Court in

B.M.Basavaraj v. Srinivas S.Datta (2016) 2 NIJ 146.

Learned Assistant Public Prosecutor would submit that after considering the oral and documentary evidence, the Courts below have rightly found the

revision petitioner/accused guilty for the offence punishable under Section 138 of N.I. Act by assigning proper and cogent reasons.

A perusal of the judgments of the Courts below and the documents filed on behalf of both the parties would show that it is the case of the revision

petitioner/accused that P.W.1 was not the Managing Director of the 1st respondent company and in support of his contention he mainly relied upon

Exs.D1 and D2, which were filed during the pendency of the appeal. The case of the 1st respondent/complainant is that Exs.P19 to P22 filed by

P.W.1 during the pendency of the appeal, would show that while issuing the certified copies, the Registrar of Companies, A.P. put a seal specifically

that the company was under management dispute and the certified copies were issued without prejudice to the contents and rights of the parties

enforceable in Court of law, but that seal or stamp is not found in the certified copies filed by the revision petitioner/accused. Therefore, the

genuineness of Ex.D2 alleged to have been obtained certified copies from the Registrar of Companies is doubtful. The record further reveals that the

company was closed in the year 2004 due to disputes and Ex.P22 supported the case of the 1st respondent/complainant that P.W.1 was the Managing

Director of the Company at the relevant period in the year 2003 when the complaint was filed. Since the 1st respondent/complainant company was

closed in the year 2004 due to disputes, he could not produce other relevant records during the course of trial of the case. That apart, the record

further discloses that the revision petitioner/accused did not give any reply to the statutory notice under Ex.P14 stating that P.W.1 has no authority to

file a complaint and that there is no record to show that somebody was the Managing Director of the 1st respondent company by that relevant time.

Relying upon the judgment of the Apex Court in S.M.S.Pharmaseuticals Ltd. V. Neeta Bhalla and another (2006) 1 ALD (Crl.) 29, the Courts below

have rightly held that P.W.1 was in charge of the conduct of the business, he entered into Ex.P1-Memorandum Of Understanding with the revision

petitioner/accused, he received Exs.P8 and P9 cheques, got issued a notice and filed the complaint in the capacity of Managing Director. It is also

described in Ex.P1 that the 1st respondent/complainant is the Managing Director of the company. It is further held that P.W.1 was the Managing

Director at the time of transaction and also at the time of filing complaint, but not a Director, Manager or Assistant Works Manager. Further, the 1st

respondent/complainant being the Managing Director of the Company needs no resolution or authorization to file the complaint and that the judgments

relied upon by the learned Counsel for the revision petitioner/accused, are not applicable to the facts on hand.

Going by the judgments of the Courts below and the entire material available on record, it can be seen that both the Courts below rightly held that the

1st respondent/complainant has established the guilt of the revision petitioner/accused under Section 138 of the N.I. Act and also found that the

revision petitioner/accused had miserably failed to discharge his burden to rebut the presumption. The reasoning assigned by the Courts below in

support of its findings in favour of the 1st respondent/complainant and against the revision petitioner/accused, is fully justified and that there is no

perversity or illegality at all. As the Courts below have rightly appreciated the evidence and materials and applied the legal question in its proper

perspective and in accordance with the settled legal position, I find no reason to interfere with the concurrent findings of the Courts below with regard

to the conviction.

Insofar as sentence of imprisonment is concerned, after considering the age and the attendance of the revision petitioner/accused before the Courts

below for every hearing, the appellate Court has rightly reduced the sentence of imprisonment from One year to Six months and, therefore, no

interference is warranted in this regard. Hence, there is no merit in the revision and the same is liable to be dismissed.

Accordingly, the Criminal Revision Case is dismissed.

Miscellaneous petitions, if any, pending shall stand closed.