Karnataka High Court
Sri M/S Mahaveera Transport Pvt Ltd vs Sri Sudarshan on 27 February, 2025
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C/W CRL.A No. 503 of 2024
CRL.A No. 511 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO.522/2024 (A)
C/W
CRIMINAL APPEAL NO.503/2024 (A)
CRIMINAL APPEAL NO.511/2024 (A)
IN CRL.A.NO.522/2024
BETWEEN:
SRI. M/S. MAHAVEERA TRANSPORT
PVT LTD., OFFICE AT A- 41,
DEVARAJ URS TRUCK TERMINAL
OPP. KANTEERAVA STUDIOS
YESHWANTHPURA,
BENGALURU - 560 022
Digitally REPRESENTED BY ITS MANAGING
signed by
SWAPNA V DIRECTOR, SRI SUSHIL KUMAR JAIN
Location: high AGED ABOUT 70 YEARS
court of MOB - 9342815878
karnataka ... APPELLANT
(BY SRI. A.S. GUPTA, ADVOCATE)
AND:
SRI RADHAKRISHNAN
S/O BHASKARAN PILLAI
AGED ABOUT 63 YEARS
RESIDING AT #41, 2ND CROSS
HARMONY CLASSIC ORCHADS,
PHASE-1 BEHIND MEENAKSHI
TEMPLE BANNERGHATA ROAD
BENGALURU - 560 078.
... RESPONDENT
(BY SRI. KRISHNA S. VYAS, ADVOCATE)
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THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
PRAYING TO A) SET ASIDE THE ORDER PASSED BY THE TRIAL
COURT IN C.C.NO.6005/2022 ON THE FILE OF XX ADDITIONAL
SMALL CAUSES JUDGE AND ADD.C.M.M. AND MACT, BENGALURU
(SCCH-22) AND ALLOW THIS CRL.A. B) GRANT DOUBLE OF THE
CHEQUE AMOUNT ALONG WITH INTEREST AND COST OF THE
PROCEEDINGS IN THE TRIAL COURT AND BEFORE THIS APPEAL. C)
GRANT RELIEF U/S 357 OF CR.P.C. AND COMPENSATION TO THE
APPELLANT.
IN CRL.A.NO.503/2024
BETWEEN:
SRI. M/S. MAHAVEERA TRANSPORT
PVT LTD., OFFICE AT A- 41,
DEVARAJ URS TRUCK TERMINAL
OPP. KANTEERAVA STUDIOS
YESHWANTHPURA,
BENGALURU - 560 022
REPRESENTED BY ITS MANAGING
|DIRECTOR, SRI SUSHIL KUMAR JAIN
AGED ABOUT 70 YEARS
MOB - 9342815878
... APPELLANT
(BY SRI. A.S. GUPTA, ADVOCATE)
AND:
SRI SRINIVAS
S/O SASTAMVELI RAGHAVAN PILLAI,
AGED ABOUT 59 YEARS,
RESIDING AT #137, 2ND CROSS,
3RD MAIN, DOLLARS COLONY,
BEHIND SHOPPERS STOP,
BANNERGHATTA ROAD,
BENGALURU - 560 078
... RESPONDENT
(BY SRI. KRISHNA S. VYAS, ADVOCATE)
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THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
PRAYING TO 1) EXAMINE THE LEGALITY, THE PROPRIETY AND
CORRECTNESS OF THE PROCEEDINGS BEFORE THE TRIAL COURT IN
C.C.NO.6003/2022, ON THE FILE OF XX ADDL. SMALL CAUSES
JUDGE AND ADDL. CHIEF METROPOLITAN MAGISTRATE AND MACT,
BENGALURU (SCCH-22). 2) SET ASIDE THE ORDER PASSED BY THE
TRIAL COURT IN C.C.NO.6003/2022, ON THE FILE OF XX ADDL.
SMALL CAUSES JUDGE AND ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AND MACT, BENGALURU (SCCH-22) AND ALLOW THIS
APPEAL.
IN CRL.A.NO.511/2024
BETWEEN:
SRI. M/S. MAHAVEERA TRANSPORT
PVT LTD., OFFICE AT A- 41,
DEVARAJ URS TRUCK TERMINAL
OPP. KANTEERAVA STUDIOS
YESHWANTHPURA,
BENGALURU - 560 022
REPRESENTED BY ITS MANAGING
DIRECTOR, SRI SUSHIL KUMAR JAIN
AGED ABOUT 70 YEARS
MOB - 9342815878
... APPELLANT
(BY SRI. A.S. GUPTA, ADVOCATE)
AND:
SRI SUDARSHAN
S/O. SASTAMVELI RAGHAVAN PILLAI
AGED ABOUT 57 YEARS
RESIDING AT #99, 6TH CROSS
DOLLARS COLONY, NEAR J.D.
MARA BELIKAHALLI,
BANNERGHATTA ROAD,
BENGALURU - 560 078
... RESPONDENT
(BY SRI. KRISHNA S. VYAS, ADVOCATE)
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THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
PRAYING TO 1) SET ASIDE THE ORDER PASSED BY THE TRIAL
COURT IN C.C.NO.5370/2022 ON THE FILE OF XX ADDITIONAL
SMALL CAUSES JUDGE AND ADDL. C.M.M. AND MACT, BENGALURU
(SCCH-22) AND ALLOW THIS APPEAL. 2) AND EXAMINE THE
LEGALITY, THE PROPRIETY AND CORRECTNESS OF THE
PROCEEDINGS BEFORE THE TRIAL COURT IN C.C.NO.5370/2022 ON
THE FILE OF XX ADDL. SMALL CAUSES JUDGE AND ADDL. CMM AND
MACT, BENGALURU (SCCH-22) ORDER PASSED ON DATE
30.01.2024.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 20.02.2025 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED
THE FOLLOWING:-
CORAM: HON'BLE MRS JUSTICE M G UMA
COMMON CAV JUDGMENT
The complainant in C.C.Nos.5370, 6003 & 6005 of 2022,
on the file of the learned XX Additional Small Causes Judge and
Additional Chief Metropolitan Magistrate and M.A.C.T.,
Bengaluru (SCCH-22) is impugning the judgments dated
30.01.2024, acquitting the accused for the offence punishable
under Section 138 of Negotiable Instruments Act (for short 'the
NI Act').
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2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the complainant
filed the private complaint in PCR Nos.5790, 5791, 5792 of 2021
before the Trial Court against the accused, alleging commission
of the offence punishable under Section 138 of NI Act.
4. It is the contention of the complainant before the
Trial Court that the complainant is a Company represented by
its Managing Director-Mr. Sushil Kumar Jain. On 21.12.2020,
the accused in all the 3 cases i.e., Sudarshan, Srinivas and B.
Radhakrishnan entered into an agreement with the complainant
to avail loan of Rs.25,00,000/- to be paid to one Bharath
Dayanand Reddy s/o Dhayanand Reddy and in terms of the
agreement, Rs.25,00,000/- was paid to Sri. Bharath Dayanand
Reddy. Out of the loan amount of Rs.25,00,000/- accused-
Sudarshan in C.C.No.5370/2022 undertook to repay
Rs.8,00,000/- and issued cheque bearing No.377124 dated
05.07.2021. Similarly, accused-Srinivas in C.C.No.6003/2022
undertook to repay Rs.9,00,000/- and issued cheque bearing
No.424144 dated 05.07.2021. Similarly, accused -
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B.Radhakrishnan in C.C.No.6005/2022 undertook to repay
Rs.8,00,000/- and issued cheque bearing No.059155 dated
15.07.2021 towards repayment of their portions of the loan
amounts. When the cheques were presented for encashment,
the same were dishonourned with an endorsement "kindly
contact drawer/drawee bank and present again". Since the
cheques were already expired, the complainant could not
present the cheques once again. Legal notice was issued to the
accused calling upon them to repay the cheque amounts. Inspite
of service of legal notice on all the accused, they have neither
repaid the cheque amount nor replied to the notice. Thereby,
they have committed the offence under Section 138 of NI Act.
Accordingly, the complainant filed 3 different complaints in PCR
Nos.5790, 5791 and 5792 of 2021 against the accused alleging
commission of the offence punishable under Section 138 of NI
Act and requested the Trial Court to take cognizance of the
offence and to initiate legal action.
5. The Trial Court took cognizance of the offence and
registered C.C.Nos.5370, 6003 & 6005 of 2022. The accused
appeared before the Trial Court and pleaded not guilty. The
Managing Director of the Company examined himself as PW-1
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and got marked Ex.P1 to P6 in support of his contention. The
accused have denied all the incriminating materials available on
record in their statement recorded under Section 313 of Cr.PC.
But have not led any evidence in support of their defence.
However, got marked Ex.D1 in C.C.No.5370/2022 during cross
examination of PW-1. The Trial Court after taking into
consideration all these materials on record came to the
conclusion that the complainant was not successful in proving
the guilt of the accused beyond reasonable doubt. Accordingly,
passed the impugned judgments, acquitting the accused in all 3
cases. Being aggrieved by the same, the complainant is before
this Court.
6. Heard Sri A.S.Gupta, learned counsel for the
appellant and Sri. Krishna S Vyas, learned counsel for
respondents. Perused the materials including the Trial Court
records.
7. Learned counsel for the appellant contended that
the appellant - complainant is the private limited Company
represented by its Managing Director - Mr. Sushil Kumar Jain.
Very same Managing Director deposed before the Court as PW-
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1. The accused have never disputed Ex.P6 - the agreement
dated 21.12.2020, where under all the accused are arrayed as
second party and at their instance, loan of Rs.25,00,000/- was
paid to Bharath Dayanand. Ex.P6 refers to the cheques bearing
No.424144 for Rs.9,00,000/- dated 05.07.2021, No.377124 for
Rs.8,00,000/- dated 05.07.2021 and No.059155 for
Rs.8,00,000/- dated 15.07.2021 drawn by each of the accused
in 3 different cases. The accused are neither disputing that they
are the parties to Ex.P6 nor they are disputing issuance of
cheques, which are subject matter in these 3 complaints. It is
not disputed that the cheques in question were dishonoured.
Service of legal notices are also not disputed. Admittedly, the
accused have not issued any reply. Under such circumstances,
the legal presumption under Sections 118 and 139 of NI would
arise. The accused have not stepped into the witness box.
However, got marked Ex.D1 - the absolute sale deed, during
cross examination of PW-1 in C.C.No.5370/2022, which is dated
19.12.2020 i.e., much earlier to Ex.P6. Therefore, it will not
enure to the benefit of the accused in any manner. However, the
Trial Court proceeded to pass the impugned judgments solely on
the ground that PW-1 even though the Managing Director of the
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private limited Company, had no authority to represent the
Company and the authorization given by Board of Directors is
not produced.
8. Learned counsel submitted that, when admittedly,
PW-1 is the Managing Director of Private Limited Company
entered into an agreement as per Ex.P6, producing the
Resolution, authorizing him to represent the Company was not
at all necessary. There will be implied authority in favour of the
Managing Director and the same was never questioned by the
accused. However, to be on safer side, memo dated 03.12.2024
is filed producing copy of the Board Resolution authorizing PW-1
Sushil Kumar Jain to prosecute and defend the case relating to
the Company. Therefore, it is clear that PW-1 had authority to
represent the Company. Under such circumstances, the Trial
Court has committed an error in dismissing the complaint solely
on the ground that the authorization letter is not produced.
9. Learned counsel submitted that the accused have
not taken any legal defence and therefore, the legal
presumption under Section 118 and 139 of NI Act were never
rebutted. Under such circumstances, the accused are liable for
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conviction. Accordingly, prays for allowing the appeals and to
convict the accused.
10. Per contra, learned counsel for respondents-
accused opposing the appeals submitted that the complainant is
M/s. Mahaveera Transport Private Limited, which is a private
Company, said to be represented by its Managing Director. But
Incorporation Certificate of the Company is not produced.
According to PW.1, there was a Resolution in the Board Meeting
authorizing him to represent the Company and to file the
complaint. No such Resolution is produced before the Trial
Court. The Articles of Association is not produced to contend
that he is the Managing Director and authorized to represent the
Company. Under such circumstances, the complaint is liable to
be dismissed in limine.
11. Learned counsel further submitted that the accused
never admitted execution of the agreement dated 21.12.2020
marked as Ex.P6. The terms of this agreement go to show that
the first party has agreed to purchase the property from the
second party subject to certain conditions. But during cross-
examination of PW.1, he categorically admitted Ex.D1 i.e. copy
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of the Registered Sale Deed dated 19.12.2020 under which, the
property was already purchased. Under such circumstances, no
sanctity could be attached to Ex.P6 which is admittedly
subsequent to a Registered Sale Deed Ex.D1. Under Ex.D1, even
the actual possession of the property was handed over to the
complainant. Moreover, there is no reference to lending of the
amount under Demand Draft. Even though, the complainant
contends that the amount of Rs.25,00,000/- was paid to
Bharath Dayanand as per the directions of the accused through
Demand Draft, no such documents are produced. Even the Bank
statement is not produced to evidence the fact.
12. Learned counsel submitted that in Ex.P6, there is
reference to a tripartite agreement that is to be entered into
between the parties. Even the said agreement is not produced
by the complainant before the Trial Court. Under these
circumstances, the complainant has not discharged his initial
burden to prove lending of the amount and issuance of the
cheques towards discharge of the legally enforceable debt.
Therefore, presumption under Section 139 of NI Act does not
arise and under such circumstances, the Trial Court was right in
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acquitting the accused. There are no grounds for setting aside
the impugned judgments, which are well reasoned.
13. Learned counsel placed reliance on the decision of
the Hon'ble Apex Court in Dale & Carrington Investment
Private Limited and Another v/s P.K.Pratapan and
others1, to contend that a Company is a juristic person and act
through its Directors. Unless the individual Director is authorized
by the Board of Director to represent the Company, he is not
authorized to do so.
14. Learned counsel placed reliance on the decision of
the Hon'ble Apex Court in Basalingappa v/s Mudibasappa2 in
support of his contention, that even if the legal presumption
under Section 139 of NI Act is to be raised in favour of the
complainant, it is open for the accused to rely on the evidence
led by the complainant and to rely on the materials produced
before the Court to raise a probable defence. The accused is not
required to step into the witness box to speak about the
defence.
1
(2005) 1 SCC 212
2
(2019) 5 SCC 418
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15. Placing reliance on these decisions, learned counsel
contended that, the Director of the Company had no authority to
file and maintain the complaint. Lending of the amount of
Rs.25,00,000/- was never proved by the complainant, execution
of Ex.P6 stands falsified since PW-1 categorically admitted the
Registered Sale Deed dated 19.12.2020 marked as Ex.D1. The
tripartite agreement referred to in Ex.P6 is also not produced for
perusal of the Court, which are sufficient to hold that Ex.P6 is a
fabricated document, concocted for the purpose of supporting
the false claim by the complainant.
16. Learned counsel also submitted that the legal
notices said to have been issued by the complainant were never
served on the accused. Even on that ground, the accused were
entitled for acquittal and the Trial Court rightly acquitted the
accused. Since there are no reasons to interfere with the said
judgments, he prays for dismissal of the appeals as devoid of
merits.
17. In view of the rival contentions urged by learned
counsel for both the parties, the point that would arise for my
consideration is:
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"Whether the impugned judgments of
acquittal passed by the Trial Court suffers from
perversity or illegality and calls for interference by
this Court?"
My answer to the above point is in the 'Negative' and
pass the following:
REASONS
18. It is the contention of the complainant that, it is a
private limited Company represented by its Managing Director
Mr. Sushil Kumar Jain. The authority of Mr. Sushil Kumar Jain to
file and maintain the complaint is seriously disputed by the
accused. During his cross-examination, PW-1 asserted that
there is a Board Resolution authorizing him to represent the
Company. However, his authority to represent the Company was
denied by the accused and such suggestion was denied by the
witness. But in spite of that, no such Resolution was produced
before the Trial Court. Even though it is stated that he is the
Managing Director of the Company, no document is produced to
establish the same. Learned counsel for the appellant contended
that, the Board Resolution authorizing Mr. Sushil Kumar Jain
could not be produced before the Trial Court and copy of the
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same is produced before this Court. The complaint came to be
filed before the Trial Court on 17.12.2021 and the impugned
judgments acquitting the accused came to be passed on
30.01.2024. But the Board Resolution produced before this
Court is dated 03.02.2024 i.e., much after disposal of the
criminal complaint before the Trial Court.
19. Learned counsel for the respondent placed reliance
on the decision of the Hon'ble Apex Court in Dale & Carrington
(supra), where the Hon'ble Apex Court highlighted the legal
position of the Directors of Companies registered under the
Companies Act and held that the Company is a juristic person
which acts through its Directors, who are collectively referred to
as Board of Directors. It is also held that an individual Director
has no power to act on behalf of the Company of which, he is
the Director, unless by some Resolution of the Board of
Directors of the Company, specific power is given to him/her. It
is also held that whatever decisions that are taken regarding
running of the affairs of the Company, they are to be taken by
the Board of Directors as they are the
agents/trustees/representatives acting on behalf of the
Company in a fiduciary capacity.
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20. Learned counsel also placed reliance on the decision
of the Hon'ble High Court of Bombay in Ashok Bampto Pagui
v/s Agencia Real Canacona Pvt. Ltd and Another3, where
the High Court of Bombay has expressed a similar opinion to
hold that, it is only the body of Directors called as Board of
Directors is having the power to represent the Company, which
can be delegated in favor of one of the Directors. Thus, the
position of law is very well settled that to file the complainant
representing the Company there must be a Resolution by the
Board. Even though PW-1 asserts that he is having such
authority assigned in his favour by the Board by passing a
Resolution, the same is not produced before the Trial Court. The
copy of the Resolution produced before this Court is much after
disposal of the criminal case before the Trial Court. Under such
circumstances, it cannot be said that the complainant Company
is represented by an authorised person.
21. The next contention raised by the learned counsel
for the appellant is that, the accused have never disputed Ex.P6
- the agreement dated 21.12.2020 under which the accused
have availed loan of Rs.25,00,000/-, which was paid to one
3
2007 SCC Online Bom 482
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Bharat Dayanand. He contends that Ex.P6 - the agreement also
refers to the cheques in these three cases marked as Ex.P1
issued by the accused individually towards discharge of legally
enforceable debt. Therefore, the accused who are not disputing
Ex.P6 cannot dispute issuance of cheques as well and under
such circumstances, presumption under Sections 118 and 139 of
NI Act would arise.
22. It is pertinent to note that the accused had never
admitted execution of the agreement Ex.P6. It is also the
contention of the learned counsel for the complainant that
Rs.25,00,000/- referred to in Ex.P6 was paid to the Bharat
Dayanand through demand draft. It is pertinent to note that
during cross examination of PW-1, the witness was cross
examined at length regarding the manner in which the loan of
Rs.25,00,000/- was paid. PW-1 asserted that the same was paid
through demand draft. However, he admits that in Ex.P6 there
is no reference to payment of the amount through demand draft
nor any document is produced to evidence the fact that the
amount was paid to Bharat Dayanand through demand draft. It
is also pertinent to note that during cross-examination of PW-1,
witness was specifically asked as to whether the bank passbook
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or account books were produced to evidence lending of the
amount. It is admitted that, no such documents are produced to
evidence the contention of the complainant. Witness stated that
there is one more agreement where there is reference to
payment of the amount to Bharath Dayanand through demand
draft. But admittedly, no such documents are produced before
the Trial Court or before this Court. Witness further asserts
during cross examination that there was a Board Resolution for
payment of Rs.25,00,000/- to Bharat Dayanand. Even such
Resolution is not produced before the Court for the reasons best
known to him. Similarly, witness asserts that he has taken the
acknowledgement from Bharat Dayanand for having received
Rs.25,00,000/-, which is also not forthcoming.
23. It is pertinent to note that, it is the
specific contention of the complainant that Rs.25,00,000/- was
paid under Ex.P6 to Bharat Dayanand and the accused in these
cases, undertook to pay the said amount and accordingly issued
3 cheques i.e., 1 cheque for Rs.9,00,000/- and 2 cheques for
Rs.8,00,000/- each. It is the contention of the accused that no
such agreement as per Ex.P6 was executed and no amount of
Rs.25,00,000/- as contended by the complainant was paid to
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Bharat Dayanand and the accused have never undertaken to
repay the amount either individually or collectively. However,
the accused admit their signatures, found on Ex.P1 cheques
marked in the above cases. It is the settled position of law that
once the accused admits issuance of the cheque with their
signature, the presumption under Section 139 of NI Act would
arise and the burden shifts on the accused to rebut the legal
presumption.
24. Learned counsel for the respondent placed reliance
on the decision of the Hon'ble Apex Court in Basalingappa
(supra) to contend that in order to rebut the legal presumption
under section 139 of NI Act, the accused is not required to step
into the witness box, but he can rely on the evidence and the
materials that are produced by the complainant for the purpose
of raising a probable defence. The Hon'ble Apex Court in
paragraph No.25 summarizes the principles enumerated on the
subject in various decisions as under:
"25. We having noticed the ratio laid down by this Court
in the above cases on Sections 118(a) and 139, we now
summarise the principles enumerated by this Court in
following manner:
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25.1. Once the execution of cheque is admitted Section
139 of the Act mandates a presumption that the cheque was
for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him or the accused can
also rely on the materials submitted by the complainant in
order to raise a probable defence. Inference of preponderance
of probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to the
circumstances upon which they rely."
25.4. That it is not necessary for the accused to come in
the witness box in support of his defence, Section 139
imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the
witness box to support his defence."
25. This decision makes the position of law very clear
that the accused may not have to enter the witness box to
depose regarding his defence. If he is successful in raising a
probable defence on the basis of the materials that are placed
before the Court by the complainant, the same is sufficient to
rebut the presumption.
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26. Learned counsel for the appellant contended that
Ex.P6 is an admitted document, which is seriously disputed by
the learned counsel for the respondents. During cross-
examination of PW-1, the witness was cross examined
thoroughly regarding execution of Ex.P6. The tenor of cross
examination of the witness do not suggest that the accused
have admitted execution of Ex.P6.
27. Ex.P6 is the agreement dated 21.12.2020 said to
have been executed between the complainant Company as first
party and the accused in these cases as second party. As per
the terms of the agreement, the first party along with Anuj
Cargo Movers Bengaluru are purchasing the industrially
converted land bearing Sy.No.26/2 situated at Bidaragere
village, KasabaHobli, Anekal Taluk, Bengaluru Rural District,
measuring 5.14 acres from the second party. The second party
i.e. the accused availed loan from Bharat Dayanand and in order
to clear the loan and to release the title deeds of the above
properties, second party requested first party i.e. the
complainant to lend a sum of Rs.25,00,000/- Accordingly,
Rs.25,00,000/-was lent by first party paying the same to Bharat
Dayananda. But strangely, Bharat Dayananda is not a party to
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this agreement. Moreover, there is reference to a tripartite
agreement between first party, second party and the said
Bharat Dayananda to enable the first party to release the loan
amount directly to Bharat Dayananda on behalf of the second
party and to collect the title deeds pertaining to the property
referred to above. The said tripartite agreement has not seen
the light of the day, till date. The recitals in Ex.P6 makes it clear
that the amount of Rs.25,00,000/- was never paid to Bharat
Dayananda under this agreement. But it was paid under the
separate tripartite agreement entered into between three parties
and there is no reasonable explanation as to why the same is
not to be produced before the Trial Court by the complainant to
substantiate his contention.
28. Learned counsel for the respondents drawn my
attention to Ex.D1, the copy of the registered sale deed. This
document was tendered to PW-1 during cross-examination and
on his admission the same is marked. This sale deed is dated
19.12.2020. As per this document, the accused in these cases
as vendors sold 5.14 acres of land in Sy.No.26/2 situated at
Bidragere village, Kasaba Hobli, Anekal Taluk, Bengaluru Rural
District which is referred to in Ex.P6, in favor of the complainant
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M/s Mahaveera Transport Private Limited and M/s Anuj Cargo
Movers, by receiving the entire consideration amount of Rs.4
crores. There is reference to an agreement to sell dated
16.10.2019 entered into between the parties. The purchaser
agreeing to purchase and the vendors agreeing to sell and it is
stated that while executing the agreement to sell, the
purchasers have paid the entire consideration of Rs.4 crores to
the vendor, as detailed in the sale deed. All the payments were
either through cheque or RTGS or demand draft or through
online transfer. Thus, under the admitted registered sale deed
dated 19.12.2020, marked as Ex.D-1, the accused in these 3
cases sold 5.14 acres of land in favour of the complainant and
another by receiving the entire sale consideration amount of Rs.
4 crores. There is no explanation as to why the agreement Ex.P6
came to be executed two days later, that is on 21.12.2020. It is
not explained as to what was the necessity for the complainant
who already paid Rs. 4 crores under the agreement to sell dated
16.10.2019 to pay Rs.25,00,000/- once again to Bharat
Dayanand. The recitals found in Ex.P6 is quite contrary to the
recitals in the admitted registered sale deed Ex.D1. Under such
circumstances, it is to be held that the accused are successful in
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probablizing their defence that the cheques Ex.P1 were not
issued towards discharge of legally enforceable debt. When the
accused are successful in probabalizing their defence, the legal
presumption under Section 118 and 139 of NI Act gets rebutted
and the burden again shifts on the complainant to prove lending
of the amount by placing cogent materials, without relying on
the legal presumption under Sections 118 and 139 of NI Act.
29. The discussions held above discloses, that the
complainant even though contended that Ex.P6 was executed
and Rs.25,00,000/- was paid through the demand draft to
Bharath Dayanand at the request of these accused, has not
probabalized the same. The recitals in Ex.P6 even if accepted,
do not suggest that the amount of Rs.25,00,000/- was paid
under the agreement. The recitals in the document states that,
there is a tripartite agreement to which Bharat Dayanand was
also a party and the amount of Rs.25,00,000/- was paid, but the
said agreement was never produced before the Court. Even
though it is the contention of the complainant, that amount of
Rs.25,00,000/- was paid through demand draft after passing a
Resolution by the Board of Directors, no such documents are
forthcoming. Even the bank statements to evidence the fact of
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lending the amount are not produced before the Court. Under
such circumstances, it cannot be held that the complainant has
proved lending of the amount and existence of legally
enforceable debt. When the accused is successful in rebutting to
legal presumption and when the complainant fails to prove
lending and existence of legally enforceable debt, the accused is
entitled for acquittal.
30. Learned counsel of the appellant placed reliance on
the decision of the Hon'ble Apex Court in Rajesh Jain v/s Ajay
Singh4 to contend that, in view of the presumption under
Section 139 of NI Act, the burden shifts on the accused to prove
his defence. The accused has not issued any reply nor have they
stepped into the witness box to depose regarding their defence
and under such circumstances, they are liable for conviction.
31. I have gone through the decision rendered by the
Hon'ble Apex Court. The position of law with regard to the legal
presumption under Section 139 of NI Act, shifting of the burden
on the accused on admitting issuance of cheque with his
signature to take the defence and to probabalize the same and
on probabalizing the defence by the accused, again shifting the
4
AIR 2023 SC 5018
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burden on the complainant to prove lending of the amount is
reiterated by the Hon'ble Apex Court. However, on the merits of
the case, the Court held that the accused was not successful in
rebutting the legal presumption or probabalizing the defence.
The conduct of the accused was commented that he has not
stepped into the witness box to depose regarding his defence
and therefore, the appeal was allowed and the accused was
convicted. But the facts in the present cases are entirely
different. The accused are successful in probabalizing their
defence by cross-examining PW1 and by producing Ex.D1.
Under such circumstances, it cannot be said that adverse
inference could be drawn against the accused for not stepping
into the witness box to depose before the Trial Court. It is not
the requirement of law in all the cases that the accused are
required to step into the witness box and depose regarding their
defence, when the materials placed by the complainant itself
creates a serious doubt in the mind of the Court about the
contention taken by the complainant.
32. Learned counsel for the appellant while addressing
the argument contended that he is having the xerox copies of
the demand draft for having lent the amount to the accused by
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paying it to Bharat Dayanand. It is also his contention that
learned counsel who was representing the complainant before
the Trial Court had not conducted the trial properly and
therefore, no adverse inference could be drawn against the
complainant. Even if such submissions are to be accepted, there
must be a specific ground made in the memorandum of appeal
while preferring the appeal. No such grounds are made out in
the appeal. The appellant has never produced any additional
documents along with the memorandum of appeal or at the time
of addressing the arguments, in accordance with law. Under
such circumstances, the contention raised by the complainant
cannot be accepted.
33. I have gone through the impugned judgments
passed by the Trial Court. It has taken into consideration the
materials on record and has arrived at a right conclusion that
the complainant is not successful in proving the guilt of the
accused beyond reasonable doubt. By acquitting the accused,
the presumption of innocence of the accused gets
strengthened and I do not find any compelling reasons to set
aside the impugned judgments of acquittal.
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34. In view of the discussion held above, I am of the
opinion that the appellant has not made out any grounds to
allow the appeals.
35. Accordingly, I answer the above point in the
Negative and proceed to pass the following:
ORDER
Appeals are dismissed.
Sd/-
(M.G. UMA)
JUDGE
SPV
