Himachal Pradesh High Court
Its Managing Director Sh vs Bratindranath Banerjee; 2004(3) ... on 1 October, 2021
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
BEFORE
.
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CRIMINAL APPEAL NO. 263 OF 2010
Between
M/S HIMALAYAN PLASTICS LTD
(FORMERLY KNOWN AS M/S
HIMALAYAN PLASTICS PVT.
LTD.) HAVING ITS WORKS AND
REGISTERED OFFICE AT 9,
INDUSTRIAL ESTATE
CHAMBAGHAT, TEHSIL &
DISTT. SOLAN (HP) THROUGH
ITS MANAGING DIRECTOR SH.
MADAN SHARMA.
....APPELLANT
(BY SH O.C SHARMA , ADVOCATE)
AND
1. SH. TEJ SINGH SON OF SH.
MIR SINGH, RESIDENT OF
VILLAGE BHORA KHURD,
TEHSIL & DISTRICT GURGAO,
HARYANA SOLE PROPRIETOR
OF M/S NEELAM BHOWARA
AGENCY, NAND RAMPUR BASS
ROAD, DHARUHERA, DISTRICT,
REWARI, HARYANA.
2. STATE OF H.P.
....RESPONDENTS
(BY SH. JITENDER PAL, ADVOCATE FOR
RESPONDENT NO. 1)
::: Downloaded on - 31/01/2022 23:09:35 :::CIS
2
(BY SH. ARVIND SHARMA, ADDITIONAL
ADVOCATE GENERAL FOR
RESPONDENT NO. 2)
.
Reserved on 24.9.2021
Decided on 1st October, 2021
Whether approved for reporting ? Yes.
_________________________________________________
This appeal was heard and reserved and the Court passed
the following:
JUDGMENT
By way of this appeal, the appellant has challenged the
judgment passed by the Court of learned Judicial Magistrate 1 st
Class, Solan, District Solan, Himachal Pradesh in Complaint No.
106/3 of 2004, dated 30.03.2010, vide which respondent-accused
stand acquitted for commission of offence punishable under Section
138 of the Negotiable Instruments Act, 1881.
2. Brief facts necessary for adjudication of the appeal are
that complainant/appellant is a duly incorporated and registered
Company under the Indian Companies Act, 1956 having its registered
office at Chambaghat, Tehsil and District Solan, H.P. with the
Registrar of Companies at Jallandhar vide Registration No. 0608245
dated 05.04.1988. Earlier the Complainant-Company was named
known as 'Himalyan Plastic Private Limited' and later on it was
converted into a 'Limited Company' under Sections 31/44 of the
Companies Act, 1956 vide order of the Registrar of Companies dated
.
05.01.2001. As such, now it is known as 'Himalyan Plastic Limited'.
All the liabilities, rights, assets etc. of M/s Himalyan Plastic Private
Limited have been taken over by M/s Himalyan Plastic Limited. The
Complainant-Company has its registered office and works at
Chambaghat, Tehsil, and District Solan H.P. Sh. Madan Sharma is the
Managing Director and responsible officer of the Company and he is
duly authorized and is competent to maintain this appeal, adduce
evidence to depose on oath and to engage the services of counsel and
generally to do all lawful acts, deeds and things which may be
necessary for the said purpose. The present complaint has been filed
through Sita Ram Verma, who has been duly authorized through a
general power of attorney by the Managing Director of the
complainant Company, Madan Sharma. The Complainant-Company
deals in the business of manufacturing and sale of HDPE Pipes,
fittings, sprinkler, drip irrigation systems, PIR( Silicon coated) HDPE
Telecom. Duct. The accused was earlier purchasing the above
material on credit basis form the Complainant-Company as per the
business practice. In order to discharge the part of the liability and for
consideration, the accused issued cheque duly signed by him in
favour of Complainant-Company bearing Cheque No. 608301 on
23.6.2003 for Rs. 11,79,500/- drawn on PNB Haily Mandi, Gurgaon,
.
Haryana on his account No. 752 with the assurance that the same
would be honoured on its presentation under its bank in all
circumstances. Accordingly, complainant deposited the said cheque in
the State Bank of India, The Mall Solan for encashment. The said
banker of the Complainant-Company forwarded the said cheque to
the drawee bank for presentation/realization, but to the utter surprise
of the Complainant-Company, the said cheque was returned as
unpaid by the drawee bank vide its cheque returning memo dated
22.8.2003, indicating the reason "insufficient funds" and this
information was given to the complainant-Company by the State
Bank of India, The Mall Solan vide letter dated 27.8.2003. The said
Cheque was dishonoured by the drawee bank due to insufficiency of
funds to the credit of accused. After the receipt of the said cheque as
unpaid, complainant company issued a registered AD notice dated
9.9.2003 sent on 10.09.2003 at two correct addresses of the accused
requiring him to make the payment of the said dishonoured cheque to
the complainant company within 15 days from the receipt of the
notice. Notice was also sent separately under postal certification. The
notices were duly received by the accused on 15.9.2003, but in spite
of having received the notices, the accused failed to make the
payment of the dishonoured cheque to the Complainant- Company.
.
The period mentioned in the notice expired on 30.9.2003. Since the
accused had failed to make the payment of the dishonoured cheque
within the 15 days from 15.9.2003 and the period mentioned in the
notice expired, so the accused is guilty of offence punishable under
Section 138 of the Act. It has also been stated in the complaint by the
Complainant-Company that the cause of action for filling the
complaint arose to the Complainant-Company on 1.10.2003 and
further when the accused committed offence punishable under
Section 138 of the Act and further on 9.9.2003 when notice was
issued and sent on 10.9.2003, which was received by the accused on
15.9.2003. The cause of the action also arose when the accused failed
to make payment within 15 days from 30.9.2003. It has, therefore,
been prayed that the accused may be summoned, dealt with and
punished as per provisions of Section 138 of the Act.
3. The complaint was dismissed by the learned trial Court
after due trial.
4. Feeling aggrieved, the appellant has maintained the instant
appeal before this Court.
5. I have heard Mr. O.C. Sharma, learned counsel for the
appellant, Mr. Jitender Pal, learned counsel for respondent-accused
.
and Mr. Arvind Sharma, learned Additional Advocate General for
respondent-State and also gone through the records of the case.
6. Mr. O.C. Sharma, learned counsel for the appellant has
argued that the present case is squarely covered by the judgments
rendered by Hon'ble Apex Court and Hon'ble High Courts viz.
2001(1) Apex Court Journal 617(SC), titled as Hiten P. Dalal Vs.
Bratindranath Banerjee; 2004(3) Criminal Court Cases 478 (P&H),
titled as M/s Thapar Agro Mills & Anr. Vs. Haryana State Industrial
Development Corporation Ltd & Anr; 2008 (2) Civil Court Cases 238
(AP), titled as Surana Securities Ltd. Vs. G. Kamalakar & Anr;
2009(1) Criminal Court Cases 360 (SC), titled as National Small
Industries Corporation Ltd. Vs. State (NCT of Delhi) & Ors; 2010
(11) Supreme court Cases 441, titled as Rangappa Vs. Sri Mohan;
2012(3) Criminal Court Cases 853 (Delhi), titled as Manoj Sharma
Vs. Anil Aggarwal; 2014(2) Criminal Court Cases 246 (SC), titled as
Ashok Debbarma @ Achak Debbarma Vs. State of Tripura. 2015(3)
Criminal Court Cases 059 (SC), titled as T. Vasanthakumar Vs.
Vijayakumari; 2016 (10) Supreme Court Cases 458, titled as
Sampelly Satyanarayana Rao Vs. Indian Renewable Energy
Development Agency Limited; Latest HLJ 2017(HP), titled as Pushap
Raj Vs. Ramdhan; Latest HLJ 2017 (HP) 1326, titled as Gian Chand
.
Vs. Vijay Sood; 2018 (2) Sml. LC 944, titled as M/s Mohan Meaking
Limited Vs. M/s Spirit and Beverages L-1; 2018 (8) Supreme Court
Cases 165, titled as Kishan Rao Vs. Shankargouda; 2019 (4)
Supreme Court Cases 197, titled as Bir Singh Vs. Mukesh Kumar;
2019 (10) Supreme Court Cases 203, titled as Rahul Sudhakar
Anantwar Vs. Shivkumar Kanhiyalal Shrivastav and 2021(5)
Supreme Court Cases 283, titled as Kalamani Tex and another Vs. P.
Balasubramanian.
7. On the other hand, Mr. Jitender Pal, learned counsel for
the respondent-accused argued that the complaint is not maintainable,
as the complaint is not filed by the authorized person and is liable to
be dismissed on this sole ground. He has further argued that Madan
Sharma was never the Managing Director of the Company, as no
document has been produced or proved on record and the only
document is Memorandum of Association i.e. Ext. CW1/B, and the
same is nowhere contains the name of Mr. Madan Sharma as
Managing Director. He further argued that even the list of Directors,
which is allegedly filed is not a copy of the proceedings duly attested
and it is simply a typed copy and is totally unreliable in evidence and
no reliance can be placed on the same. He further argued that Madan
Sharma, Managing Director, allegedly authorizing Mr. Sita Ram
.
Verma to maintain the complaint is without any basis as neither Sita
Ram Verma was having any authority nor Madan Sharma was any
authority to Sita Ram Verma and even otherwise also there is no
alleged authority letter produced or proved on record. He has further
argued that Ext. PW1/C is a simple Power of Attorney and nothing
more. He further argued that Yash Ram how connected with the
affairs of the agency has not been explained by the complainant and
in that eventuality also the complaint is not maintainable. He has
referred to the statement of Sita Ram Verma and puts emphasis on his
examination-in-chief to show that the complaint was not maintainable
and the same cannot be pursued and maintained by authorized person.
He further argued that there is nothing on record with regard to the
amount due for some consideration. He further argued that as per Sita
Ram Verma, the transaction took place at Gurgaon and no transaction
took place at Solan and even on that count also, the complaint was not
maintainable. He further argued that Sita Ram Verma in his cross
examination specially admitted that he has no knowledge with regard
to the transaction, and the time of transaction, with the respondent-
accused, hence the complaint is liable to be dismissed on this count
also.
.
8. Mr. Jitender Pal, learned counsel for the respondent-
accused has cited various judgments of Hon'ble Supreme Court and
Hon'ble High Courts viz. 1999(2) Civil Court Cases 553 (P&H),
titled as Meeta Rai Vs. Gulshan Mahajan; 2006(3) RCR (Criminal)
504 (SC, titled as M.S. Narayana Menon @ Mani Vs. State of Kerala
& Anr; 2007(2) Civil Court Cases 803 (Madras), titled as Lakshmi
Srinivas Savings & Chit Funds Syndicate Pvt. Ltd. Vs. S. Bhojarajan;
2007(4), Civil Court Cases 385, titled as Director, Maruti Feeds &
Farms Private Limited, Dharwad Vs. Basanna Pattekar; 2010(1) Civil
Court Cases 381 (Rajasthan) (DB), titled as M/s United Construction
Co. Vs. State of Rajasthan and Ors; 2011(2) Civil Court Cases 690
(SC), titled as Milind Shripad Chandurkar Vs. Kalim M. Khan & Anr;
2011(3) Civil Court Cases 619 (Kerala), titled as Santhi Vs. Mary
Sherly; 2012(4) Civil Court Cases 807 (Rajasthan), titled as Ashok
Leyland Finance Limited Vs. State of Rajasthan & Anr; 2013(2)
Civil Court Cases 107 (SC) titled as Vijay Vs. Laman & Anr; 2016(1)
Criminal Court Cases 364 (Delhi), titled as Hans Kumar Jain Vs.
Renu Gandotra @ Poonam; 2016(3) Civil Court Cases 654
(Bombay), titled as Sachin Food Processor Vs. Sanjay T. Pathak
(Kulkarni); 2018(2) Civil Court Cases 530 (Kerala), titled as
Susamma Raju Vs. K.M. Wilson; 2018(4) Civil Court Cases 619
.
(Bombay), titled as Ghanshyamdas Lalchand Chandak Vs. Sheikh
Hamid Sheikh Gulab & Anr; 2019(3) Apex Court Judgments 732
(SC), titled as B. Krishna Reddy Vs. Syed Hafeez (Died) per LR.
Smt. Naseema Begum & Anr; 2020(3) RCR (Criminal) Kerala High
Court, titled as Abdulkhader Vs. C. Pankajakshan Nambiar and Ors;
2021(3) Civil Court Cases 724 (Gujarat), titled as M/s Bajaj Finance
Limited Vs. Pooja Narayana Khetan and 2021(3) Civil Court Cases
438 (Kerala)(DB), titled as K. Basheer Vs. C.K. Usman Koya.
9. Mr. Jitender Pal, learned counsel for respondent-accused
has further argued that the authority letter which is on record is not an
authority letter. The authority letter Ext. CW1/E nowhere contains
the stamp of the Company nor it binds the Company for the act of the
person's authorized.
10. The cumulative reading of all the judgments shows that
the law already stands settled as on date is that after the presentation
of the cheque even after the second time and its dishonoring, the
complaint can be maintained after issuing notice as per the provisions
under the Negotiable Instruments Act and the same process will start
after dishonor of the cheque for the second time as if it has
dishonored for the first time till the time the Negotiable Instruments
Act is valid.
.
11. The cheque should have been issued for consideration
and the complainant is required to prove the consideration when in
defence it is the case of the accused that the cheque was given not for
consideration but as a security only.
12. To appreciate the arguments of learned counsel for the
parties and after going through the records of the case wherein Sita
Ram Verma deposed that he was general power of attorney of the
complainant-Company through whom the present complaint was
filed. He further deposed on that the complainant Company was
earlier registered as Himalyan Plastic Pvt. Ltd., but later on its name
was changed to M/s Himalyan Plastic Pvt. Ltd. To prove this fact he
has proved the memorandum and articles of association as Ex.CW1/B
where three Directors amongst whom Madan Sharma is the Managing
Director. He also identified the lists of Directors as Ex. CW1/C, the
authority letters purportedly executed in his favour by the Company is
Ex. CW1/D and Ex. CW1/E. He further stated that the complainant
Company was dealing in the business of manufacturing and sale of
HDFC pipes, sprinkler pipes and irrigation systems and the accused
was the proprietor of Neelam Fawara Agency and that he used to
purchase sprinkler pipes and accessories form the complainant
Company on credit basis and the accused had issued a Cheque
.
Ex.CW1/F against account maintained by the Company in respect of
the above trade transactions that the said cheque was presented to
SBI, Solan for encashment which was forwarded to PNB i.e. the
drawer bank for collection. The said cheque could not be encashed for
want of sufficient funds and information pertaining to the same was
sent by the drawer bank vide memos Ex. CW1/G and Ex. CW1/H
and thereafter information was received by the complainant vide
memo Ex. CW1/J and thereafter legal notice Ex. CW1/K was sent
through the counsel on the correct address of the accused which was
received by him on 15.9.2003. The said notice was sent through RAD
as well as UPC and receipts thereof were Ex. CW1/M and Ex.
CW1/N. He further stated that the accused did not make the payment
after receipt of notice till date. In his cross-examination, he testified
that he had brought accounts statement in the Court but could produce
the same in case Court required the same. He further deposed that he
was General Power of Attorney of the complainant Company. He
admitted the suggestion that the alleged authorization letter Ex.
CW1/D did not have any stamp of the Company and the list of
present Directors of the complainant Company Ex. CW1/C also did
not have any stamp but it was typed one. He further admitted that no
date was mentioned on the list of the Directors Ex. CW1/C that he
.
had not filed any affidavit pertaining to withdrawal of authority in his
favour. Self stated that the authority granted in his favour has not
been withdrawn. He further admitted that no stamp was there on Ex.
CW1/E and only printed stamp was there. He further deposed that the
accused was neither a dealer nor the customer of the complainant
Company and no purchase order was being issued by the
complainant Company pertaining to the credit purchase and he could
not tell the worth of goods allegedly purchased by the accused from
the complainant Company. Self stated that the accused had purchased
goods from the complainant Company on many occasions but he had
not brought the requisite record but the same had been prepared by
the Company. He further stated that the goods were sent to the
accused from Gurgaon. He denied the suggestions that when business
transactions started between the accused and the complainant
Company, a blank cheque was taken from the accused. He could not
tell as to whether the goods purchased by the accused pertained to
agriculture or not. He denied the suggestions that the legal notice Ex.
CW1/A was duly replied by the accused through his counsel. He
further denied the suggestions that the present case had been filed by
the complainant Company for taking a revenge against the accused
since he had stopped purchasing goods from them.
.
13. CW-2 Ramesh Sharma Sr. Assistant State Bank of India
is Official witness who deposed that the complainant Company was
keeping a CCA account with their bank. He further deposed that
cheque Ex. CW1/A was presented in their bank for encashment on
7.8.2003 and the said cheque was sent to PNB, Gurgaon i.e. the
drawee bank where from it was returned back dishonored and
intimation in this regard was given by the drawee bank vide memo
Ex.CW1/H. Later on the bank informed the complainant Company of
the dishonor the cheque, vide memo Ex.CW1/J on 27.8.2003 and they
had charged Rs.2,429/- on account of realization charges from the
complainant Company. He further stated that the said statement of
account had duly been attested as Bankers Book of Evidence Act. The
statement pertaining presentation and dishonor of cheque was also
proved as Ex. CW2/B. This witness was put to lengthy cross-
examination, but nothing material could be extracted therefrom. Inter
alia, he admitted that statements Ex.CW1/A an Ex.CW1/B did not
mention designation of the issuing authority. He further admitted that
first two pages of the statement of account had not been certified and
even the stamp of the bank was not there on the said page. He denied
the suggestions that the cheque in question had not been received for
encashment in their bank and it was not sent to drawer bank for
.
encashment.
14. P.R. Kaushik, Clerk, PNB, Hailly Mandi, District
Gurgaon, Haryana, brought the requisite record from the said bank.
He deposed that the accused was keeping an account with their bank.
He further deposed that cheque Ex. CW1/F was received for
encashment from SBI, Solan on 22.7.2003 but the same was not
encashed and it was dishonoured for want of sufficient funds. He
proved the statements of account of the accused as Ext. CW3/A which
was signed by the Manager of the bank. He further proved the copy
of cheque returning register as Ex. CW3/B by comparing the same
with the original. In the similar manner, he also identified the memos
pertaining to dishonour of the cheque as Ex. CW1/G and Ex. CW1/H.
In his cross-examination, he admitted the suggestion that the record
produced by him in the Court had not been certified under the
Bankers Book of Evidence Act and that even the statement of
account, Ex. CW3/A had not been certified as per the said Act. He
could not tell as to whether the cheque Ex. CW1/F pertained to the
account of the accused. He admitted the suggestion that the stamp of
the bank was not there on the memos Ex. CW1/G and Ex. CW1/H
and even the designation of the person signing over the same has not
been mentioned. Self stated that signatures were of one Raj Singh,
.
Special Assistant. He denied the suggestion that the cheque was not
received by their bank for encashment and that he was deposing
falsely in connivance with the complainant.
15. After analyzing the evidence on record, it is clear that
Sita Ram Verma was not authorized as per the resolution of the Board
of Directors of the Company nor he was a Principal Officer of the
Company and his title to maintain the present complaint was to be
considered vis-a-vis his capacity to depose in the Court of law.
Though, we may proceed with the presumption that he was having
authority to proceed with the complaint as he was working with the
Company. Then the second question arises whether the onus which
shifted on the complainant that the cheque was not issued for
consideration and it was only a security amount has been discharged.
The answer is that onus was not discharged as the company which is
supposed to maintain the accounts of which are to be maintained in
the regular course of business for all intents and purposes should have
shown the sale and those documents should have produced by the
complainant company in the Court as the sale would have been the
consideration for the cheque. Failure of the same shows that the
cheque was only issued as a security. The witnesses of the
complainant nowhere able to prove that the cheque was for the
.
supplies made and it was for consideration.
16. In these circumstances this Court holds that after
applying the law that the findings as recorded by the learned court
below call for no interference even after re-appreciating the evidence.
17. It has been held in K. Prakashan vs. P.K. Surenderan
(2008) 1 SCC 258, that when two views are possible, appellate Court
should not reverse the judgment of acquittal merely because the other
view was possible. When judgment of trial Court was neither
perverse, nor suffered from any legal infirmity or non
consideration/mis-appreciation of evidence on record, reversal thereof
by High Court was not justified.
18. The Hon'ble Supreme Court in T. Subramanian vs.
State of Tamil Nadu (2006) 1 SCC 401, has held that where two
views are reasonably possible from the very same evidence,
prosecution cannot be said to have proved its case beyond reasonable
doubt.
19. In Chandrappa vs. State of Karnataka, (2007) 4 SCC
415, the Hon'ble Supreme Court has culled out the following
principles qua powers of the appellate Courts while dealing with an
appeal against an order of acquittal :
.
"42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1873 puts no limitation,
restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling
reasons', 'good and sufficient grounds', 'very strong circumstances',
'distorted conclusions', 'glaring mistakes', etc. are not intended to
curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of 'flourishes of
language' to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court."
20. The net result of the above discussion is that the
appellant/complainant-Company has failed to prove the guilt of the
accused conclusively and beyond reasonable doubt. There is no
illegality and infirmity in the findings, so recorded by the learned trial
Court.
21. Accordingly, in view of the observations and analysis,
made hereinabove, there is no merit in the appeal and the same is
.
dismissed. Record of the learned trial Court be sent back forthwith.
22. Pending miscellaneous applications, if any, also stand
disposed of.
(Chander Bhusan Barowalia)
1st October, 2021 Judge
(Guleria)
