Karnataka High Court
Godrej & Boyce Manufacturing Company ... vs Sri Chetan Srinivas on 29 July, 2024
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NC: 2024:KHC:29850
CRL.A No. 630 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 630 OF 2011
BETWEEN:
GODREJ & BOYCE MANUFACTURING
COMPANY LTD.,
REGD. OFFICE AT PIROJSHANAGAR
VIKHROLI (W)
MUMBAI-400 079.
BANGALORE BRANCH OFFICE AT
THE KARNATAKA FILM CHAMBERS OF COMMERCE
NO. 28, 1ST MAIN, CRESCENT ROAD
HIGH GROUNDS, BANGALORE-560 001.
Digitally signed
by NANDINI B G
REP BY ITS BRANCH COMMERCIAL
Location: high
court of MANAGER MR.S.SOLOMON.
karnataka ...APPELLANT
(BY SRI.R.KIRAN., ADVOCATE (VC))
AND:
SRI. CHETAN SRINIVAS
PROPRIETOR
M/S. LUCID TELENOCOM
NO. 639/1, 2ND FLOOR
3RD CROSS, 2ND STAGE
RAJAJINAGAR
BANGALORE-560 010.
...RESPONDENT
(BY SRI.MANU N.P., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
31.03.2011 PASSED BY THE XIV ACMM, BANGALORE IN
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CRL.A No. 630 of 2011
C.C.NO.40608/08 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in CC No.40608 of 2008 on the file of
the learned XIV Additional Chief Metropolitan Magistrate,
Bengaluru, is impugning the judgment dated 31.03.2011
acquitting the accused for the offence punishable under Section
138 of the Negotiable Instruments Act (for short '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 R Kiran, learned counsel for the appellant
and Sri N P Manu, learned counsel for the respondent. Perused
the materials including the Trial Court records.
4. Learned counsel for the appellant - complainant
submitted that admittedly, the complainant and the accused
were carrying out the business and the accused purchased the
products from the complainant under various invoices. He was
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due for a sum of Rs.5,27,696/- and towards repayment of the
same, he has issued the cheques - Exs.P8 and 9. When the
same was presented for encashment, both the cheques were
dishonored as there was insufficient funds. Legal notice was
issued and the same was served on the accused as per the
postal endorsement - Ex.P.14. An untenable reply as per -
Ex.P15 was issued by the accused but he has not repaid the
cheque amount and thereby, he has committed the offence
punishable under Section 138 of NI Act. The Manager of the
complainant examined himself as PW1. The relevant
documents were marked as per Ex.P1 to P16. In spite of that,
the Trial Court proceeded to acquit the accused recording the
finding that the complainant is not successful in proving the
existence of legally recoverable debt.
5. Learned counsel submitted that the complainant
had filed the civil suit against the accused for recovery of the
amount that was due from him and the same came to be
decreed. However, the accused has challenged the same by
preferring an appeal. When the civil suit is decreed under
similar contentions and documents, the same is to be taken
note of by this Court to convict the accused.
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6. Learned counsel also submitted that Ex.P16 is an
admitted document which is the acknowledgment issued by the
accused categorically admitting that the amount of
Rs.3,77,696/- is due from him on 22.12.2008. Under such
circumstances, the contention of the accused that he has paid
the amount on various dates prior to Ex.P16 cannot be
accepted. Under such circumstances, the Trial Court has
committed an error in acquitting the accused. Accordingly, he
prays for convicting the accused and prays to allow the appeal.
7. Per contra, learned counsel for the respondent -
accused opposing the appeal submitted that the complainant
has approached this Court with specific contention that the
amount of Rs.5,27,696/- was due to be paid by the accused
under various invoices specifically mentioned in the complaint.
When the Manager of the complainant was cross examined
before the Trial Court, he has given candid admission that even
though the accused was due to a sum of Rs.5,27,696/- as on
31.03.2008, he has received a sum of Rs.1,50,800/- from the
accused subsequent to 31.03.2008. He has stated that he has
received an amount of Rs.1,50,000/- through DD on
09.07.2008. Therefore, even according to the complainant, the
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accused was not due to a sum of Rs.5,27,696/- as on the date
of filing of the complaint. Under such circumstances, the Trial
Court was right in holding that the complainant has not proved
the existence of legally recoverable debt as mentioned in the
complaint.
8. Learned counsel further submitted that the
complainant has misused the cheques that were given as
security and also concocted the acknowledgment regarding the
amount that was due. In fact, the accused has issued reply as
per Ex.D3 and not as per Exs.P15 or P16. The decree of the
suit by the Civil Court is challenged by preferring an appeal and
the same is pending consideration. Under such circumstances,
the decree of the suit by the Civil Court cannot be the sole
ground to reverse the judgment of acquittal passed by the Trial
Court. There are no reasons to interfere with the findings
recorded by the Trial Court. Accordingly, he prays for dismissal
of the appeal.
9. In view of the rival contentions urged by learned
counsel for the parties, the point that would arise for my
consideration is:
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"Whether the appellant has made out any
grounds for allowing 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
10. The complainant has filed the complaint with
specific pleading that under various invoices mentioned in
paragraph 5 of the complaint, a sum of Rs.5,27,696/- was due
to be paid by the accused to the complainant. Towards
discharge of the same, the accused has issued two cheques as
per Exs.P8 and P9 for Rs.1,85,120/- and Rs.3,42,576/-
respectively. The cheques were dishonored and the legal notice
was served on the accused. There was no payment and
therefore, he is liable for conviction.
11. The Manager of the complainant examined himself
as PW1. During cross examination, the witness categorically
stated that the amount that was due as on 31.03.2008 is
Rs.5,27,696/-. He also admitted that the complainant has
received an amount of Rs.1,50,800/- from the accused
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subsequent to 31.03.2008. He has also stated that the
complainant has received an amount of Rs.1,50,000/- through
DD on 09.07.2008.
12. According to the learned counsel for the appellant,
the amount that has been received by him pertains to some
other invoices, but no such invoices are referred by the
complainant in his complaint. There is no explanation
forthcoming in the evidence of PW1 in that regard. Learned
counsel for the complainant has also not re-examined the
witness regarding the candid admission made by PW1 during
cross examination. That means to say that inbetween
31.03.2008 and 09.07.2008, the complainant has received
Rs.1,50,800/- and Rs.1,50,000/- from the accused. Thus, it is
clear that the complainant has received part payment from the
accused after dishonor of cheques in question. Hence, the
complainant cannot contend that the amount under cheques
are legally recoverable debt from the accused.
13. It is pertinent to note that the complainant has
placed reliance on Ex.P16 i.e., the acknowledgment said to
have been issued by the accused dated 22.12.2008. This
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document pertains to two different invoices dated 22.05.2008.
There is no reference about the same in the complaint filed by
the complainant. Under such circumstances the complainant
cannot place reliance on Ex.P16 to contend that the accused
himself admitted that an amount of Rs.3,77,.696/- was due
from him as on the date of Ex.P16.
14. Even if, Ex.P16 is to be admitted as issued by the
accused, it pertains to two invoice numbers and it has nothing
to do with the cheques - Exs.P8 and P9 relied on by the
complainant. From these materials on record, it is seen that
even after dishonor of cheques - Exs.P8 and 9, there was
payment by the accused which was not referred to in the
complaint. The contention of the complainant that the
admission made by PW1 regarding receiving the amount
pertains to some other invoices, cannot be accepted for lack of
such explanation found in the evidence. When admittedly the
portion of cheques amount is already repaid by the accused, it
cannot be said that the amount to be recovered under the
cheques was legally recoverable debt under Section 138 of NI
Act.
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15. It is the contention of the learned counsel for the
complainant that since the suit filed by him for recovery of the
amount due is decreed, the accused is liable for conviction.
Learned counsel for the accused submitted that the accused
has challenged the said decree by preferring an appeal, which
is pending consideration before this Court. The materials that
are relied by the Civil Court for decreeing the suit may be
entirely different. No materials are placed before this court as
to what are the documents that are relied on by the civil Court.
The contention of the learned counsel for the complainant that
simply because the civil suit is decreed for recovery of the
amount, cannot result in convicting the accused in the present
case, wherein, there is categorical admission by PW1 regarding
the receipt of amount on various dates much prior to the filing
of the complaint.
16. The apprehension expressed by the learned counsel
for the complainant that, confirmation of judgment of acquittal
by this Court will affect him in the civil appeal pending before
the co-ordinate Bench of this Court, wherein the decree passed
by the civil court is being challenged cannot have any basis
since, this Court is confined its finding only to the facts and
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circumstances and the documents that are placed before the
Court to find out as to whether the offence under Section 138
of NI Act is made out by the complainant against the accused.
Therefore, the same cannot come in the way to decide the
appeal which is pending for consideration against the decree
passed by the civil court.
17. I have gone through the impugned judgment of
acquittal passed by the Trial Court. It has taken into
consideration the oral and documentary evidence in the light of
the averments made in the complaint and arrived at a right
conclusion. I do not find any reason to interfere with the same.
Accordingly, I answer the above point in the negative and
proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
BGN
