1 IN THE HIGH COURT OF KARNATAKA, GULBARGA BENCH BETWEEN Dated this the 18 th day of September, 2013 BEFORE THE HON BLE MR. JUSTICE B.V. PINTO Criminal Appeal No.3655/2009 JEETENDRANATH S/O BABU RAO HERUR AGED ABOUT 40 YEARS OCC: AGRICULTURE R/O HERUR COMPOUND STATION BAZAR, MAIN ROAD, GULBARGA... APPELLANT (By Sri VEERESH B PATIL, ADV.,) AND 1. M/s. KALBURGI DALL MILLS THROUGH ITS MANAGING PARTNER SOMSHEKHAR A. KALBURGI AGE: 41YEARS, OCC: BUSINESS R/O KALBURGI DALL MILLS FARTABAD TALUK, GULBARGA 2. SOMSHEKHAR A. KALBURGI AGE: 41 YEARS OCC: BUSINESS R/O M/s. KALBURGI DALL MILLS FARTABAD TALUK, GULBARGA... RESPONDENTS (By Sri BABURAO MANGANE & Sri ASHOK B. MULAGE, ADVs.,FOR R1 & R2)
2 THIS CRL.A.FILED U/S. 378(4) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT DT: 17.08.09 PASSED BY THE II ADDL. CIVIL JUDGE (JR.DN) & JMFC AT GULBARGA IN CRIMINAL CASE NO.194/06 AND CONSEQUENTLY BE PLEASED TO CONVICT THE RESPONDENT FOR THE OFFENCE P/U/S.138 OF NI ACT. THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:- JUDGMENT This appeal is filed challenging the Judgment dated 17.8.2009 passed by the II Addl. Civil Judge (Jr.Dn.) & JMFC Court at Gulbarga in C.C.No.194/2006, acquitting the respondent/accused of the offence under Section 138 of the N.I.Act. 2. It is the case of the Complainant that he is an agriculturist and that he has grown Toor in his agricultural land. Accused is running a Dall Mill in the name and style of Kalburgi Dall Mill at Farhatabad, Taluka & District Gulbarga and he is purchasing the Toor from the agriculturists directly. It is stated in the complaint that accused No.2 was in charge of and responsible for the
3 conduct of the business of accused No.1. It is stated in the complaint that the accused had purchased 150 quintals of Toor from the Complainant at the rate of `2,000/- per quintal and towards the payment of the price of the said Toor, the accused has issued a cheque for a sum of `3 lakhs vide cheque No. GBA.No.627400 dated 10.3.2004 drawn on Tamilnad Mercantile Bank Limited, Gulbarga in favour of the Complainant. It is stated that the cheque, when presented for payment was dishonoured for Insufficiency of Funds and thereafter the Complainant issued a notice under Section 138 of the N.I.Act calling upon the accused to pay the cheque amount. The accused despite receiving the said notice, failed to pay the cheque amount. On the contrary, he has given a reply denying the allegations of the Complainant. Thereafter since no payment is received, the Complainant has filed the complaint before the Court under Section 200 of Cr.P.C., The Court after taking cognizance of the offence, issued summons to the accused and on his pleading not guilty, Complainant examined one Jeetendernath as PW.1 and further examined two witnesses PW.2-Basavaraj and
4 PW.3-K.Prabhakar and produced documents including the Cheque as Ex.P1; Endorsement issued by the Bank as Ex.P2; Legal Notice as Ex.P3; Postal Cover as Ex.P4; Private Complaint as Ex.P5 and copy of Registration Certificates as Exs.P6 & P7. The defence of the accused was one of total denial. It is contended by the accused that the cheque has been issued by one Kalburgi Granite Metal Industry and the accused has no connection at all to the said concern and that he is not even a Partner in the said concern. The learned Magistrate after hearing the Complainant and the defence found that the cheque has been issued in the name of the concern with which the accused has no legal relationship at all and therefore holding that the Complainant has not proved the case has acquitted the accused. It is this Judgment of acquittal, which is challenged by the Complainant before this Court. 3. Heard Sri Veeresh B. Patil, learned Counsel appearing for the appellant and Sri Baburao Mangane and Sri Ashok B.Mulage, learned Counsel appearing for the Respondents.
5 4. Sri Veeresh B. Patil, learned Counsel appearing for the appellant submits that as per Exs.P6 and P7 produced by the Complainant, which are the Registration Certificates of the Firms namely., Kalburgi Dall Mills and Kalburgi Granite Metal Industry, respectively, both the sister concerns are run by accused No.2-Somshekhar A. Kalburgi and that the Complainant was misguided by the accused while issuing the cheque. It is his further submission that the cheque has been dishonoured not on the ground of disparity in signature, but on the ground of insufficiency of funds. Therefore, he submits that having regard to the constitutions of both the concerns, the Complainant having received the cheque from M/s. Kalburgi Granite Metal Industry, the learned Magistrate ought to have convicted the accused by finding him guilty. Hence, he submits that the order of acquittal may be set aside and the accused may be convicted by allowing this appeal. 5. Learned Counsel for the appellant has cited the following rulings:-
6 (i) 2012 (3) KCCR 2214 [Ajith Balse v. Capt. Ranga Karkere]. In this case, the Complainant has made the Company as a party and not the Director, who has signed the cheque. The Court has held that such a complaint is maintainable. However, in the present case, the person against whom the case is filed is a different legal entity, who has no legal connection at all with the Company. Hence, this case is not applicable to the facts of the present case. (ii) 2001 (4) KCCR SN 354 [H.V.Srinivas and Others v. Air Force Station. This decision is a Short Note and is bereft of any particulars. It is the sister concern, who has issued the cheque. Whereas, in the present case, there is no material to show that Kalburgi Dall Mills and Kalburgi Granite Metal Industry are sister concerns. 6. Sri Baburao Mangane and Sri Ashok B.Mulage, learned Counsel appearing for the Respondents on the other hand submits that both the concerns namely., Kalburgi Dall
7 Mills and Kalburgi Granite Metal Industry are two different concerns and the cheque appears to have been issued in the name of the latter concern of which accused No.2- Somshekhar A. Kalburgi is not a partner. It is his submission that accused No.2 has no connection at all with Kalburgi Granite Metal Industry. Whereas, he has filed the complaint only against Kalburgi Dall Mills and its Partneraccused No.2. Under the circumstances, having not proceeded against the person, who has issued the cheque, the learned Magistrate has rightly acquitted the accused and there is no illegality committed by the learned Magistrate. Hence, he submits that the appeal may be dismissed. It is also submitted by the learned Counsel for the respondents that the Kalburgi Dall Mills has been closed about 2½ years prior to the date of issuance of the cheque. Hence, he submits that the learned Magistrate has rightly acquitted the accused. 7. I have gone through the materials on record. It is seen that the cheque-ex.p1 has been issued by showing the person issuing the cheque as Managing Partner of
8 Kalburgi Granite Metal Industry. Whereas on a perusal of the complaint-ex.p5, it is seen that the complaint has been filed against M/s.Kalburgi Dall Mills. No complaint has been filed against the person, who has issued the cheque. The complainant has produced Exs.P6 and P7 to show that the concerns namely., Kalburgi Dall Mills and Kalburgi Granite Metal Industry are two separate entities and that accused No.2-Somshekhar A. Kalburgi is a Partner of Kalburgi Dall Mills. However, Ex.P7 indicates that Kalburgi Granite Metal Industry is a Partnership Firm of which Rajashekhar and others are shown as the Partners, whereas Somashekhar is not a Partner of the said concern. Under the circumstances, the learned Magistrate has held that the complaint against the accused namely., Kalburgi Dall Mills is not maintainable and has therefore acquitted the accused. 8. I have gone through the Judgment of acquittal passed by the learned Magistrate. This being an appeal against an order of acquittal, unless the appellate Court finds that the order passed by the trial Court is perverse or against the settled principles of law or the same is not based
9 on the evidence on record, the Appellate Court cannot rightly interfere with the order of acquittal passed by the trial Court. 9. In that view of the matter, I find no materials to interfere with the well considered Judgment of acquittal passed by the Magistrate and therefore this appeal has no merit and accordingly the appeal is dismissed. cp* Sd/- JUDGE