M/S. Inden Power International ... vs Sri Chandan Pandya The State Of ...
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        THE HON'BLE Dr. JUSTICE G. RADHA RANI

              CRIMINAL APPEAL No.1221 of 2007
JUDGMENT:

This appeal is preferred by the appellant-complainant aggrieved

by the judgment dated 21.03.2007 passed in STC No.451 of 2005 by

the III Metropolitan Magistrate, Cyberabad at L.B. Nagar in acquitting

the accused for the offence punishable under Section 138 of the

Negotiable Instruments Act (for short 'NI Act').

2. The case of the appellant was that he was engaged in the

business of Mini Power Projects in A.P. under the name and style of

"Inden Power International Limited", represented by its authorised

signatory authorized by the Board of Directors vide Resolution dated

21.04.2005. The accused was running business in the name and style

of Dhansthra Capital Limited. The accused company approached the

complainant company stating that they would provide foreign fund to

the complainant company for mini power project in Andhra Pradesh.

The accused company compelled the complainant to pay Rs.35.00

lakhs for providing the same. The complainant in good faith

deposited an amount of Rs.35.00 lakhs in the account of the accused

company for facilitating foreign fund for his mini power project but

the accused failed in its duty to provide foreign funding and

committed breach of trust. The accused gave evasive replies to avoid

payments to the complainant. On repeated requests, the accused stated

that the company was in crisis and his father Devendra Pandya who

was the Managing Director of the company had expired and came Dr.GRR,J

forward to negotiate the issue by holding discussion for an amicable

settlement and agreed to settle for an amount of Rs.25.00 lakhs

though the actual liability was for Rs.35.00 lakhs. The accused gave

an undertaking letter dated 20.11.2004 to settle the amount in due

course and issued five post dated cheques for Rs.5.00 lakhs each

drawn on HSBC Lokhandwala, Mumbai and requested for some time

to clear the cheques. The complainant presented the cheque bearing

No.270360 on 02.05.2005 and the same was returned with

endorsement "Payment stopped by the drawer". The complainant

issued a legal notice dated 23.05.2005. The accused acknowledged

the receipt of notice but failed to give reply, as such, filed the

complaint under Section 138 of NI Act. The case was taken on file by

the III Metropolitan Magistrate, Cyberabad at L.B. Nagar and issued

summons to the accused. The accused appeared before the Court and

contested the matter. The complainant examined the Senior Executive

of the Company as PW.1 and the Managing Director of the company

as PW.2 and got marked Exs.P1 to P11. The accused examined

himself as DW.1 and got marked Exs.D1 and D2. On considering the

evidence on record, the learned III Metropolitan Magistrate, acquitted

the accused under Section 255(1) Cr.P.C. for the offence under

Section 138 of NI Act. Aggrieved by the same, the complainant

preferred this appeal contending that the trial Court erred in acquitting

the accused without giving any valid or cogent reasons for coming to

the conclusion. The observations and findings of the trial Court in

acquitting the accused were erroneous and unsustainable. The trial Dr.GRR,J

court ought to have taken into account Ex.P.11 wherein the accused

sought for more time to pay the amount covered by the cheque. The

trial court ought to have appreciated the fact of the undertaking given

by the accused to discharge the legally enforceable debt. The trial

court failed to appreciate the fact that the accused did not file any

documents to show that he gave a report before Oshiwara Police

Station at Mumbai and failed to appreciate the fact that the

complainant had filed a case under Section 406 and 420 IPC in

Tirumalgiri Police Station before filing the present complaint. The

trial Court failed to consider that Ex.P.9 was unconnected to the issue

in question and it was only an after-thought to avoid payment of

legally enforceable debt. The trial Court erred in coming to the

conclusion that the cheques were obtained under coercion and threat,

the same was not supported by any cogent evidence by the accused. It

was not an invariable principle that the drawer of the cheque ought to

have a direct interest in the transaction or that he must be a part of it.

The drawer of cheque could be a third party who could have

undertook to discharge the debt and the trial Court ignored the

presumptions under Section 138 of NI Act and prayed to allow the

appeal.

3. The learned counsel for the appellant failed to argue the

appeal though the matter was pertaining to the year 2007.

4. The learned counsel for the 1st respondent - accused stated

that the connected appeals in Crl.A. Nos.1512 of 2007 and 1218 of Dr.GRR,J

2007 were dismissed on 04.06.2014 and 15.02.2018 respectively and

prayed to consider this appeal also on the same grounds.

5. Perused the record, the judgment of the trial Court in STC

No.461 of 2005, dated 21.03.2007 and the judgments of this Court in

Crl.A.Nos.1512 and 1218 of 2007. All these cases are arising out of

the same transaction for the five post dated cheques issued by the

accused on 20.11.2004. The appellant failed to argue the matter in the

said appeal also. Crl.A. No.1218 of 2007 was dismissed for default,

but Crl.A. No.1512 of 2007 was dismissed on merits. Considering that

all the appeals arose from the different STCs, decided on the same day

on the same facts pertaining to different cheques issued by the

accused and the trial Court as well as this Court in Crl.A. No.1512 of

2007 considered that it was the father of the accused as the Director of

Dhansthra Capital Limited, who was alleged to have received the

amount of Rs.35.00 lakhs from the complainant and he died in the

year 2001 and the complainant, who initiated a criminal case in Crime

No.29 of 2004 on the file of Tirumalgiri Police Station, went to

Mumbai along with the Sub Inspector of Police and Head Constable

of Tirumalgiri Police Station and under threat and force obtained the

signatures of the accused i.e. son of the Managing Director of

Dhansthra Capital Limited and also obtained five blank cheques

bearing Nos.270358 to 270363 and the accused filed a complaint

before Oshiwara Police Station, Mumbai against them, for obtaining

is signatures under threat and force and considering that the accused

did not receive the amount personally, both the trial court as well as Dr.GRR,J

the appellate court in Crl.A. No.1512 of 2007 opined that the

complainant failed to prove that there was any legally enforceable

debt between the complainant and the accused. Hence, considering

that the reasons given by the trial Court are justifiable for acquitting

the accused and this Court discussed the evidence and law on the said

subject in detail in Crl.A. No.1512 of 2007 and dismissed the appeal

for the very same reasons, it is considered fit to dismiss the present

appeal also.

6. In the result, the Criminal Appeal is dismissed confirming

the judgment dated 21.03.2007 passed in STC No.451 of 2005 by the

III Metropolitan Magistrate, Cyberabad at L.B. Nagar.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J January 07, 2022 KTL