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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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
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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.
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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
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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
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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
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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
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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
