IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE: THE HON BLE MR. JUSTICE A.S.PACHHAPURE. CRIMINAL REVISION PETITION No.

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16 TH DAY OF APRIL, 2015 BEFORE: THE HON BLE MR. JUSTICE A.S.PACHHAPURE CRIMINAL REVISION PETITION No.1045 OF 2014 BETWEEN: M/S BANGALORE ENTERPRISES NO.10/1, D BLACK, SHOP NO.2, POST BOX NO.6525, S.P ROAD, BANGALORE , REPRESENTED BY ITS AUTHORIZED SIGNATORY/ P.A. HOLDER SRI.ZAHEER.... PETITIONER (BY SRI.KHADAR BASHA.H, ADVOCATE) AND ASIAN FAB TEC LIMITED PLOLT NO.15, II PHASE, PEENYA INDUSTRIAL AREA, BANGALORE , BY ITS DIRECTOR SMT.SHASHIKALA B.R REPRESENTED BY ITS GENERAL POWER OF ATTORNEY HOLDER SRI.RAGHAVENDRA J.... RESPONDENT (BY SRI.GIRIDHAR.H, ADVOCATE)

2 2 THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED: PASSED BY THE P.O., FTC (SESSIONS)- XI, BANGALORE IN CRL.A.NO.206/14 AND THE JUDGMENT AND ORDER DATED: PASSED BY THE XVII ADDL.C.M.M., BANGALORE IN C.C.NO.11874/11 AND REVERSE THE JUDGMENT OF CONVICTION AND FINE AND THEREBY ACQUIT THE PETR/ACCUSED. THIS CRL.RP. COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING: ORDER The petitioner has challenged his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as the N.I. Act for short], confirmed in the appeal by the Fast Track Court. 2. The facts reveal that the respondent is a company carrying on the business of manufacturing of LPG cylinders, transformers, etc. and on and placed purchase orders to the petitioner for supply of line materials for

3 3 a total sum of Rs.9,11, and a sum of Rs.1,19, was paid through a cheque dated and the remaining amount of Rs.7,91, was sent to the petitioner s account through RTGS. Thereby the amount payable towards the price was paid. After receiving the said sum, it is alleged that the petitioner sent the goods for which there was no order placed and it was returned to the petitioner on the aforesaid ground. After receiving the material back, the respondent insisted for return of the entire amount received and in this context two cheques dated and respectively for a sum of Rs.5,00, and Rs.4,11, were issued by the petitioner. The said cheques were presented to the banker for encashment. They returned with endorsement of insufficient funds and therefore, a notice was issued by the respondent. The demand made in the notice was not complied by the petitioner and therefore, the

4 4 respondent approached the trial Court with a complaint against the petitioner for the offence punishable under Section 138 of the N.I. Act. In the trial, the respondent was examined as P.W.1 and in his evidence, documents Exs.P1 to 15 were marked. After recording the statement of the petitioner under Section 313 Cr.P.C., as no defence evidence was lead, the trial Court heard the counsel and on appreciation of the evidence on record, convicted the petitioner for the offence punishable under Section 138 of the N.I. Act and ordered him to pay a fine of Rs.9,12,000-00, in default to undergo simple imprisonment for one year. Aggrieved by the Judgment and Order, the petitioner approached the Sessions Court in Crl.A. No.206/2014. The said appeal came to be dismissed on merit. Aggrieved by the concurrent findings of the Courts below, the present revision petition is filed.

5 5 parties. 3. I have heard learned counsel for both the 4. The point that arises for my consideration is; Whether the petitioner has made out any grounds to warrant interference in his conviction and sentence for the offence punishable under Section 138 of the N.I. Act? 5. Learned counsel for the petitioner submits that the respondent company was not properly represented by an authorized person and the authority to represent is not produced. It is also his submission that P.W.1, who is examined by the company has no authority to depose before the Court and therefore the complaint itself is not maintainable. It is his submission that respondent was not entitled to the amount under the cheques and that the respondent has misused the blank

6 6 cheques which were given as the security. Therefore, on these grounds, he has sought for setting aside the conviction and sentence. On the other hand, learned counsel for the respondent supports the Judgment and Order of the Courts below and submits that the provisions of Section 142 of the N.I. Act have been complied and that the evidence placed on record is sufficient to grant conviction. 6. So far as maintainability of the complaint is concerned, learned counsel for the petitioner has placed reliance on the decision of this Court reported in ILR 2007 Kar [Director, Muruti Feeds & Farms Pvt. Ltd. Vs. Basanna Pattekar], wherein it has been held that there must be a resolution of the company authorizing a person to file a complaint and a complaint filed without authorization cannot be maintained. He also relies on the decision

7 7 reported in 2011(1) Kar.L.J. 444 [Chandrashekharappa Vs. Sharanabasappa], wherein this Court took into consideration the provisions of Section 302 Cr.P.C. and held that the power of attorney, who was examined in the Court as a witness was not authorized by the company and therefore, in the absence of permission by the Court, he cannot be a representative of the company. 7. Now, so far as the complaint to be filed by the company is concerned, it is Section 142 of the N.I. Act, which requires to be complied. In case, if the Court is to take cognizance of a complaint for an offence under Section 138 of the N.I. Act., the complaint has to be in writing, made by the payee or, as the case may be, the holder in due course of the cheque. It is not in dispute that in the cheques produced by the respondent at Exs.P1 and 4, the name of the payee is shown as M/s. Asian Fab. Tech. Limited,

8 8 Bangalore, who is the payee and the said company is the complainant in the trial Court. So, it is a complaint in writing by the payee and therefore, the requirement of Section 142 of the N.I. Act are complied by the respondent. It can be represented by any person and there is no provision as such under the provisions of the N.I. Act as to the manner in which a company is to be represented in a case for the offence under Section 138 of the N.I. Act. It is in this context that the Apex Court in a decision reported in (2008)8 Supreme Court Cases 536 [Shankar Finance Investments Vs. State of Andhra Pradesh and others] has held that in case if Section 142 of the N.I. Act is complied, there is no necessity that a person authorized by the company has to sign the complaint. 8. In fact, the complaint which has been filed by the respondent is signed by one Raghavendra J., who was authorized by General

9 9 power of attorney and was an accountant of the company and in the absence of any provision contrary, the company was represented by the power of attorney holder and as there is compliance under Section 142 of the N.I. Act, I do not think that there is any illegality in the Order of the trial Court holding that the complaint could be maintained. As far as the decisions that have been relied upon by learned counsel for the petitioner are concerned, in ILR 2007 Kar. 3155, it was the Director, Maruti Feeds & Farms Pvt. Ltd., who was the complainant and it was not a company which was the complainant. 9. That apart, it is not necessary to follow any decision, which is contrary to the principles laid-down in a decision of the Apex Court. Furthermore, in the other decision referred, the complainant is an individual and not a company. In such a case, the principle does not apply to the facts of the case. So, looking to

10 10 the aforesaid principles laid-down, I am of the opinion that, there was no such impediment for the respondent in prosecuting the petitioner for the offence punishable under Section 138 of the N.I. Act. 10. Though it is contended by learned counsel for the petitioner that the goods were not returned, it is relevant to note that the petitioner has not replied the notice which was issued under Ex.P7. He had ample opportunity to reply the notice issued and put-forth his defence at the first instance before the complaint was lodged. 11. That apart, he has not entered the witness box to put-forth his defence that the goods were not returned to him. It is the specific contention in the complaint that the wrong materials were returned to the petitioner. So, in the absence of any material placed by the

11 11 petitioner, the mere contention itself is insufficient to rebut the presumption that arises under Section 139 of the N.I. Act and under Section 118 of the N.I. Act. 12. It is not in dispute that the cheques have been issued by the petitioner and the respondent is the payee. The cheques were bounced for the reason that there is insufficient funds in the account. To the notice issued by the respondent, there was no compliance with the demand made and it is in the aforesaid circumstances that the trial Court has rightly convicted the petitioner for the offence punishable under Section 138 of the N.I. Act. 13. So, looking to the materials placed and in view of the submissions by the learned counsel, I do not find any grounds to warrant interference in the conviction and sentence ordered by the

12 12 courts below. The revision petition has no merits and therefore, it is accordingly dismissed. Sd/- JUDGE Ksm*