Karnataka High Court
M/S Kaushalesh Steels vs M/S Fortuna Projects (India) Private ... on 31 July, 2024
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NC: 2024:KHC:30330
CRL.A No. 463 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 463 OF 2023 (A)
BETWEEN:
M/S KAUSHALESH STEELS
SRI. SUBHASH AGARWAL
AGED ABOUT 65 YEARS
PROPRIETOR: M/S KAUSHALESH STEELS
NO.E-7, UNITY BUILDINGS
J.C. ROAD, BENGALURU - 560 002
...APPELLANT
(BY SRI. SAI SHAKTI, ADVOCATE)
Digitally signed AND:
by NANDINI B G
Location: high
M/S. FORTUNA PROJECTS (INDIA)
court of PRIVATE LIMITED, NO.212
karnataka ABOVE HERO HONDA SHOW ROOM
4TH FLOOR, SADASHIVANAGAR
BENGALURU - 560 080
REP. BY ITS AUTHORISED SIGNATORIES
SMT. S. USHA RANI
AND SRI. NARESH (DECEASED)
...RESPONDENT
(BY SRI. MANJUNATH B.S., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER DATED 07.12.2022 IN C.C.NO.20688/2018 PASSED BY THE
XXVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU
BY ALLOWING THIS CRL.A AND CONVICT THE ACCUSED PERSON.
THIS CRIMINAL APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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NC: 2024:KHC:30330
CRL.A No. 463 of 2023
ORAL JUDGMENT
The complainant is before this Court being aggrieved by the judgment dated 07.12.2022 passed in CC No.20688 of 2018 on the file of the learned XXVII Additional Chief Metropolitan Magistrate, Bengaluru, acquitting the accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act').
2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.
3. Heard Sri Sai Shakti, learned counsel for the appellant and Sri B S Manjunath, learned counsel for the respondent. Perused the materials including the Trial Court records.
4. Learned counsel for the appellant - complainant contended that the accused has not disputed issuance of cheque nor has disputed that the accused was due to a sum of Rs.8,56,268/- to the complainant. The only defence taken is that the person who was representing the accused and who signed the cheques was no more in the service of the accused - Company as he has already left job and later died. However, when admittedly, he has signed the cheques representing the -3- NC: 2024:KHC:30330 CRL.A No. 463 of 2023 Company, the complainant had every right to sue the Company represented by the very same person. Learned counsel submitted that Smt Usharani was only represented the accused
- Company and she has not been sued in her personal capacity.
5. Learned counsel submitted that the complainant is the proprietary concern represented by its proprietor Subash Agarwal. During the pendency of the criminal complaint, an application was moved before the Trial Court for substitution of his brother to represent the complainant as Special Power of Attorney holder. The said prayer was allowed as per order dated 21.05.2018 and Sunil Agarwal, was permitted to represent the Company of the complainant concern as Special Power of Attorney holder. Thereafter, the examination-in-chief was filed and the Special Power of Attorney holder offered himself for cross examination, but however, a mistake has been committed by the complainant as the sworn statement was prepared in the name of Subash Agarwal instead of Sunil Agarwal. However, the mistake was curable defect and the opportunity should have been granted to the complainant to set right the same, but only on that ground, the accused could not have been acquitted. Hence, he prays for allowing the appeal. -4-
NC: 2024:KHC:30330 CRL.A No. 463 of 2023
6. Per contra, learned counsel representing the accused submitted that the mistake committed by the complainant is not a simple and curable defect, as only on the basis of sworn statement filed in the name of Subash Agarwal, The Trial Court took cognizance of the offence. The same cannot be cured at this stage. He drawn the attention to the cross examination of PW1 to contend that the attention of the complainant was drawn during cross examination by specifically asserting him that he is Sunil Agarwal, whereas, the sworn statement is in the name of Subash Agarwal. Witness asserted that he is not Subash Agarwal, but he is his brother and representing the complainant. If it was the bonafide mistake committed by the complainant or his advocate, that should have been cured at that point of time, but no such steps were taken by the complainant.
7. Learned counsel also drawn the attention to paragraph 15 of the judgment, where the Trial Court has specifically referred to the arguments addressed on behalf of the complainant , wherein the learned counsel representing the complainant asserted that there was no mistake in the affidavit filed on behalf of the complainant. It was asserted that very -5- NC: 2024:KHC:30330 CRL.A No. 463 of 2023 same PW1 has filed affidavit in lieu of examination-in-chief. Therefore, it is contended that the attention of the complainant and his counsel was drawn to the mistake on multiple occasions, but in spite of that, the complainant justified that the affidavit filed by PW1 in lieu of examination-in-chief even though is in the wrong name, the same is not fatal to his case. Under such circumstances, the Trial Court was right in acquitting the accused. No grounds are made out allow the appeal. Accordingly, he prays for dismissal of the appeal.
8. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the appellant has made out any grounds to allow the appeal and to convict the accused for the offence punishable under Section 138 of NI Act?"
My answer to the above point is in the 'Negative' for the following:
REASONS
9. The facts of the case are not in dispute. The complainant is the proprietary concern represented by its -6- NC: 2024:KHC:30330 CRL.A No. 463 of 2023 Proprietor Subash Agarwal, who filed the complaint. Later, it is stated that the Proprietor executed the Special Power of Attorney in favour of his brother Sunil Agarwal. As per order dated 21.05.2018, the Trial Court permitted to substitute the name of Sunil Agarwal as Special Power of Attorney holder to represent the proprietary concern. It is thereafter, the sworn statement was filed on 24.07.2018 but again, in the name of Subash Agarwal, the proprietor of the proprietary concern. According to the learned counsel for the appellant, even though the sworn statement stands in the name of Subash Agarwal, the signatory to the same is Sunil Agarwal. But I do not find any support to the said contention. When Subash Agarwal has sworn the affidavit before the Advocate/Notary Public and when he has been identified by the advocate as such, it cannot be contended that it was Sunil Agarwal being Special Power of Attorney, had signed the affidavit.
10. It is pertinent to note that the Power of Attorney holder Sunil Agarwal tendered himself for cross examination even though the affidavit in lieu of examination is in the name of Subhash Agarwal. During cross examination of PW1, he has categorically stated that he is not Subash Agarwal, but is Sunil -7- NC: 2024:KHC:30330 CRL.A No. 463 of 2023 Agarwal. The attention of the witness was drawn to the sworn statement, wherein, the name of Subash Agarwal is mentioned. But the witness stated that he has signed the affidavit. In spite of that, neither the witness nor his counsel thought it fit to cure the defect by filing sworn statement in the name of Sunil Agarwal. As rightly contended by the learned counsel for the respondent, the Trial Court has referred to the arguments addressed on behalf of the complainant asserting that wrong mentioning of the name of PW1 would not effect the merits of the case. The said defect goes to the root of the matter as the Trial Court has taken cognizance of the offence only on the basis of the said sworn statement, which was admittedly in the name of a wrong person. In spite of the said defect coming to the knowledge of PW1 and also his counsel, no steps were taken to cure the same at the earliest point of time.
11. When Sunil Agarwal was representing the proprietory concern as Special Power of Attorney and admittedly when he has not filed an affidavit in his name, it cannot be said that the complainant has proved its contention. When admittedly Sunil Agarwal, the Special Power of Attorney was permitted to substitute Subash Agarwal to represent the -8- NC: 2024:KHC:30330 CRL.A No. 463 of 2023 proprietary concern had not sworn any affidavit, it cannot be said that his evidence in cross examination will have any value in the eye of law. Therefore, I find considerable force in the contention taken by the respondent.
12. I have gone through the impugned judgment of acquittal passed by the Trial Court. It has taken into consideration all the relevant facts and circumstances and arrived at a right conclusion. I do not find any illegality or perversity in the order passed by the Trial Court. I find no reasons to interfere with the impugned judgment passed by the Trial Court. Hence, I answer the above point in Negative and proceed to pass the following:
ORDER The Criminal Appeal is dismissed.
Sd/-
(M G UMA) JUDGE *bgn/-
CT:VS List No.: 1 Sl No.: 19