M/S Pam Networks Ltd & Ors vs Charulatha Desai & Ors.

G Basavaraja, J

CAV ORDER

Accused-Revision Petitioners have preferred these Criminal Revision Petitions against the Judgment of conviction and Order on sentence dated 04th October, 2012 passed in CC No.11346 of 2008 and 19238 of 2009 by the XIII Additional Chief Metropolitan Magistrate, Bengaluru (for short hereinafter referred to as “the trial Court”), which is confirmed by judgment dated 28th November, 2018 in Criminal Appeals No.672 and 673 of 2012 by the LV Additional City Civil and Sessions Judge Bengaluru (CCH-56) (for short hereinafter referred to as “the appellate Court”).

For the sake of convenience, the parties herein are referred to as per rank before the trial Court.

Facts in brief are that the complainant filed complaint under Section 138 of Negotiable Instruments Act as to dishonour of cheques issued by the accused. It is stated that accused No.1 is the company viz. M/s. PAM Networks Limited and accused No.2 is its Managing Director and is also the authorised signatory of accusedNo.1-Company. The complainant was working in accused No.1 Company and in the year 2001, she left the said Company. Accused 2 and 3 are looking after the affairs of accused No.1-Company and they issued cheque bearing No.120106 dated 10th July 2007 for Rs.15,000/- pertaining to CC No.11346 of 2008 and another cheque bearing No.120108 dated 10.07.2007 for Rs.15,000/-pertaining to CC No.19238 of 2009 both drawn on UTI Bank Limited, MG Road branch, Bengaluru, and also assured the complainant that the cheques would be honoured on its presentation. Accordingly, complainant presented the said cheques through Canara Bank, Vidyaranyapura Branch, Bengaluru which were returned unpaid with an endorsement “drawer stopped the payment”. Consequently, on 17th July 2007, the complainant got issued legal notice to the accused. After service of notice, accused replied to the legal notice. However, accused did not make good the payment towards the cheques within the stipulated time. It is stated that the accused issued the above cheques towards discharge of legally enforceable debt. Thus accused committed offence punishable under Section 138 of Negotiable Instruments Act. After taking cognizance, the trial Court issued process against the accused. Accused appeared before the trial Court through Counsel and released on bail. The substance of accusation was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. To prove the case of the complainant in both cases, complainant-Smt. Charulatha Desai got examined as PW1 and marked fifteen documents as Exhibits P1 to P15 in CC No.11346 of 2008 and 56 documents as per Exhibits P1 to P56 in CC No.19238 of 2009. Upon closure of complainant side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused have totally denied the evidence of PW1 in both cases and has adduced the evidence of one Sri P.M. Prabhu as DW1 and got marked one document i.e. Letter to the complainant, as Exhibit D1.

Having heard the arguments on both sides, the trial Court convicted the accused and under Section 138 of Negotiable Instruments Act in both the cases and sentenced accused 1 to 3 to pay a fine of Rs.40,000/- and in default of payment of fine, accused 1 to 3 shall undergo simple presentment for a period of six months. It is further ordered that out of the said fine amount, Rs.30,000/- shall be paid to the complainant as compensation as provided under Section 357 of Code of Criminal Procedure and Rs.10,000/- shall be remitted to the State as fine in CC No.11346 of 2008 and similar order was also passed in CC No.19238 of 2009. Being aggrieved by the judgment of conviction and order on sentence, accused preferred appeals before the appellate Court in Criminal Appeals No.672 and 673 of 2012. The appellate Court has partly allowed the appeals, whereby the sentence to pay fine of Rs.40,000/- in both the cases came to be modified, holding the accused shall pay fine of Rs.25,000/- and out of the fine amount Rs.23,000/- to be paid to the respondent-complainant as compensation and Rs.2,000/- be ordered to be remitted to the State as fine in both cases. Being aggrieved by the judgment and order of the both Courts, accused have preferred these revision petitions.

Sri M.K. Venkataramana, learned Counsel appearing for the accused revision petitioners, would submit that the judgment of conviction and order, except modification of compensation amount by the appellate Court, are patently illegal, perverse and contrary to the material evidence and documents. The impugned orders are not speaking orders and no valid reason is assigned by both the Courts while convicting the accused. The respondent-complainant has not produced any document to show that the accused are due to the complainant to the extent of cheque amount. The respondent-complainant has stated in her cross-examination that she has invested Rs.75,000/- by way of shares and towards refund of the share amount, the accused has issued cheque exhibit P1. As the alleged share certificates were lying with the respondent, she has produced the same before the trial Court as per Exhibits P15 to 56 respectively. Hence, it is clear that the complainant has not surrendered the share certificates to the accused No.1-Company. Both the Courts have fully ignored that once the Company has issued shares to his shareholders, it cannot be refunded and accordingly both the Courts have erred in passing the impugned judgment and order.

Further the learned Counsel would submit that the contents of the cheques as per Exhibit P1, has not been written by the accused as the petitioners Counsel suggested to CW1 regarding the contents of cheque as per Exhibit P1. The complainant herself might have filled the same for her convenience and presented the same for realisation. Both the Courts below have fully ignored these aspects while passing the orders impugned. Hence, the same is liable to be set aside. Further the learned Counsel submitted that the Courts below have ignored the documents Exhibit D1 and Exhibit P13.

Accused No.2 has issued letter dated 05th July 2007 to the respondent complainant as per Exhibit D1 stating that the cheques have been obtained from the accused by coercion with the aid of Subramanyanagar Police and there is no provision for refund of share capital amount and also informed the respondent-complainant that the accused have given information to their banker as per Exhibit D1. The said letter has been duly acknowledged by the respondent-complainant before presenting the said Cheques to the Bank for realisation. Both the Courts have ignored these aspects while passing the impugned orders. There is no legally enforceable debt as on the date of issuance of Cheques. Both the Courts have not properly appreciated the evidence on record in accordance with law and facts. On all these grounds, it was sought to allow the revision petitions and to acquit the accused. In support of his submissions, the learned Counsel has relied on the following judgments:

DASRATHBHAI TRIKAMBHAI PATEL v. HITESH MAHENDRABHAI PATEL AND ANOTHER IN CRIMINAL APPEAL NO.1497 of 2022 DECIDED ON 20.04.2023;

RAJARAMA SINCE DEAD BY HIS LRS v. MARUTHACHALAM THROUGH LRS – 2023)1 KAR.L.J. 445;

BASALINGAPPA v. MUDIBASAPPA – 2019(5) SCC 418;

GOPAL REDDY v. SURSH MAHENDRAKAR AND OTHRS – 2020(5) KCCR 2540

As against this, Sri R. Srinivas, learned Counsel appearing for respondent complainant would submit that the both the Courts have properly appreciated the evidence on record and passed the impugned judgments. Absolutely there are no grounds to interfere with the judgment passed by the trial Court, which is confirmed by the appellate Court. Hence it was sought for dismissal of revision petitions.

Having heard the arguments on both sides and on perusal of the documents placed before me, the following point would arise for my consideration:

1) Whether the judgment and of conviction and order in sentence passed by the trial Court, which is confirmed by the Court is illegal perverse, capricious, and calls for interference in these revision petitions?

I have examined the material placed before me. The documents produced in both the cases i.e. cheques, Bank endorsement, legal notice, reply to the legal notice, make it crystal clear that the complainant has complied with the mandatory provisions of Section 138 of Negotiable Instruments Act before filing the complaint. The accused have not disputed the cheques and also the signature on the cheques. It is the specific defence of the accused that the complainant has collected the cheques coercively. But the same is not explained in the reply notice. However, the accused No.2 has adduced evidence in which he has stated that the cheques in question were collected by the complainant before the Subrahmanyanagar Police by pressure. There is no amount due, much less the amount mentioned in the cheques which are dishonoured, at any point of time. At no point of time, he has filled up the contents in the cheques. It is further stated that there is no provision for refund of share capital amount. Therefore, the accused have given intimation to the Bank to stop payment of cheques on presentation though there was sufficient funds in the account, as on the date of clearance of cheques in question. The said cheques were not realised, as payments were stopped by the drawers. Except the oral evidence of the accused, no materials are placed to show that the complainant has obtained the cheques in question by coercion before Subrahmanyanagar Police. Even the name of the official of Subrahmanyanagar Police has not been shown in the reply notice. If really, the complainant had obtained these cheques by coercion as alleged by the accused, the accused could have taken legal steps against the complainant for misuse of the cheques. Mere sending intimation to the Bank for stop payment is not sufficient to rebut the statutory presumption under Section 139 of the Negotiable Instruments Act. Since the accused have failed to place legal evidence to rebut the statutory presumption under Section 139 of Negotiable Instruments Act, the defence taken by the accused cannot be accepted.

Both the Courts have properly appreciated the evidence and record in accordance with law and facts and have convicted the accused for offence punishable under Section 138 of Negotiable Instruments Act. Though the cheque amount in both cases were only for Rs.15,000/- the trial Court has convicted the accused and sentenced to pay fine of Rs.40,000/-which is contrary to the provisions of Section 138 of Negotiable Instruments Act. The same was rightly modified by the appellate Court.

On careful evaluation of the entire evidence and record, I do not find any error/legal infirmities or perversity in the impugned judgment passed by the appellate Court. Hence, I answer point arose for consideration in the negative.

In the result, I proceed to pass the following:

ORDER

i) Revision petitions are dismissed;

ii) Judgment and Order dated 28th September, 2018 passed in Criminal Appeals No.672 and 673 of 2012 by The LV Additional City Civil and Sessions Judge, Bengaluru (CCH-56), is confirmed;

iii) Registry to send the copy of this order along with trial Court records to the concerned Court.