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IN THE COURT OF THE ADDL METROPOLITAN SESSIONS JUDGE FOR THE TRIAL
OF JUBILEE HILLS CAR BOMB BLAST CASE -CUM- ADDL. FAMILY COURT-CUM- XXIII ADDL. CHIEF JUDGE -CUM-IX ADDL. METROPOLITAN SESSIONS JUDGE;
HYDERABAD.
Present: Smt. P. Neeraja Addl. Metropolitan Sessions Judge for the Trial of JHCBBC-Cum-Addl. Family Court-cum- XXIII Addl. Chief Judge-Cum- IX Addl Metropolitan Sessions Judge Hyderabad.
Monday, this the 6th Day of July, 2020.
CRIMINAL APPEAL No. 913 of 2017
From which court this appeal is preferredXXI Special Magistrate, Hyderabad.
Number of the case in that CourtC.C.No.274 of 2016 (Old CC No.1069 of 2016)
Number of the appealCrl. Appeal No. 913 of 2017
Name and description of the appellant/accused.Y. Shanmukha Prasad S/o Late Venkatrathnam, aged 41 years, Occ: Business, R/o H.No.16-2-227/76, Sardar Patel Nagar,, Plot N. 76, Opp: Nizampet X Roads, Kukatpally – 500 085.
Name and description of theK.V.S.Thammi Raju S/o Ramakrishna, aged 47 years, respondent/complainant.Occ: Business, Plot. No. C89, Flat No. E4, Vora Towers, Madhuranagar, Hyderabad.
The sentence and law under which convictionIn the result, the accused is found guilty for the offence was imposed in the lower court:under Sec.138 of NI Act and convicted under Sec.255(2) of Cr.P.C and he is sentenced to undergo Simple Imprisonment for a period of Six Months and to pay fine of Rs. 42,80,000/-, in default to undergo sentence of Imprisonment for three months. In the event of realizing the said fine amount after deducting payable tax on interest portion, the remaining amount of Rs. 42,50,000/- shall be paid to the Complainant namely K.V.S. Thammi Raju S/o Ramakrishna under Section 357(1) (b) of Cr.P.C as compensation after appeal time is over. The substantive sentence of imprisonment inflicted on the accused in this case shall run concurrently with that of the substantive sentence of imprisonment inflicted in C.C.No.272 of 2016.
Whether confirmed, modified or Reversed, ifIn the result, the appeal is dismissed under Section 386 of Cr.P.C, confirming the judgment of the Learned modified the Modification: XXI Spl. Magistrate, Hyderabad in C.C. No 274 of 2016 (Old C.C.No. 1069 of 2016) dated: 31.07.2017. Trial Court is directed to take necessary steps against the accused immediately for execution of the sentence.
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DATE OF OR ON WHICH
Presentation16.08.2017
Filing17.08.2017
Notice issued by the Court18.08.2017
Bail bond if appellant is let out on bail --
Appellant is ordered to be appear04.10.2017
Hearing 16.03.2020
JUDGMENT
06.07.2020
This appeal came up before me for hearing, upon perusing the complaint, record of evidence and grounds of appeal and upon duly considering the same after hearing the arguments of Sri A. Tulsi Raj Gokul, Sri G. Venugopal and M. Bindu, Advocates for the Appellant/Accused and Sri K. Srinivas Reddy, Advocate for Respondent/Complainant and having stood over for consideration till this day, this court delivered the following:- -: J U D G M E N T:-
1.This is an appeal filed by the Appellant, who is accused in C.C. No. 274 of 2016 (Old C.C. No. 1069 of 2016) on the file of XXI Spl. Magistrate, Hyderabad, aggrieved by the Calendar and judgment dated: 31.07.2017 finding him guilty, for the offence punishable under Section 138 of the Negotiable Instruments Act and convicting and sentencing him to undergo Simple Imprisonment for a period of Six Months and to pay fine of Rs. 42,80,000/-, in default to undergo sentence of Imprisonment for three months. In the event of realizing the said fine amount after deducting payable tax on interest portion, the remaining amount of Rs. 42,50,000/- shall be paid to the
Complainant namely K.V.S. Thammi Raju S/o Ramakrishna under Section 357(1) (b) of Cr.P.C as compensation after appeal time is over. The substantive sentence of imprisonment inflicted on the accused in this case shall run concurrently with that of the substantive sentence of imprisonment inflicted in C.C.No.272 of 2016.
2.The case of the Complainant, in brief, is as follows:-
i) The Complainant and the accused are well acquainted with each other since long time. Out of the said acquaintance, the accused had requested the
Complainant to arrange an amount of Rs. 30 Lakhs to meet his business necessities 3 @ 18% interest per annum as loan in the year 2013. In view of close acquaintance with the accused, the Complainant had transferred an amount of Rs. 30 Lakhs, through RTGS into the account of wife of accused on 11.12.2013. The accused having assured the Complainant that he would pay the principle amount of Rs. 30 Lakhs along with the interest 18% within six months, failed to repay the said loan amount, inspite of repeated requests made by the Complainant.
ii) On persistent demands by the Complainant, the accused had issued a cheque bearing No. 418300 dated: 28.03.2016 drawn on HDFC Bank with Account No.
03642530000124, for an amount of Rs. 42,50,000/- i.e., principle amount of Rs. 30
Lakhs with interest till March, 2016. On deposit of the said cheque by the
Complainant in Indian Over Seas Bank, Srinagar Colony Branch, Hyderabad, it was returned on 07.04.2016 with an endorsement “Account Closed”. Inspite of the intimation given by the Complainant, to the accused about the dishonour of the cheque, he did not bother to pay the cheque amount. The Complainant got issued legal notice dated: 18.04.2016 which was received by the accused on 21.04.2016. The accused neither replied nor repaid the amount.
3.The accused was examined under Section 251 of Cr.P.C, explaining the accusation made against him, for which, he had pleaded not guilty and claimed to be tried.
4.During the course of trial, the complainant had examined himself as PW.1 and got marked Exs.P1 to P6.
5.After closure of the complainant side evidence, the accused was examined under Section 313 Cr.P.C, on the incriminating material appeared against him in the testimony of PW.1, which, he denied. The accused had examined D.W.1 on his behalf.
Ex.D.1 and Ex.D2 were marked through PW.1 on confrontation.
6.Upon hearing arguments on both sides, the trial Court passed its judgment on 31.07.2017, convicting the accused under Section 255 (2) Cr.P.C for the offence under Section 138 of Negotiable Instruments Act 1881 and sentencing him to 4 undergo Simple Imprisonment for a period of Six Months and to pay fine of Rs.
42,80,000/-, in default to undergo sentence of Imprisonment for three months. In the event of realizing the said fine amount after deducting payable tax on interest portion, the remaining amount, of Rs. 42,50,000/- shall be paid to the Complainant namely K.V.S. Thammi Raju S/o Ramakrishna under Section 357(1) (b) of Cr.P.C as compensation after appeal time is over. The substantive sentence of imprisonment inflicted on the accused in this case shall run concurrently with that of the substantive sentence of imprisonment inflicted in C.C.No.272 of 2016.``
7.The accused preferred the present appeal, challenging the judgment of the
Trial Court dated: 31.07.2017 in C.C.No.274 of 2016, on the following grounds:-
1) The Judgment rendered by learned XXI Special Magistrate, Hyderabad is totally contrary to the law and facts of the case and the learned Magistrate grossly erred in appreciating the documentary evidence.
2) The learned Magistrate failed to appreciate that the Appellant/accused is prosecuted in his individual capacity and he was not even described as the owner or authorized signatory of the business establishment Adda Restaurant and Bar in the
Complaint, since the cheque in question, was issued by the authorized signatory of
Adda Restaurant and Bar, pertaining to the account maintained by it, but not the
Appellant/Accused in his individual capacity and the requirement of the Section 138 of the Negotiable Instruments Act was not complied with.
3) The learned Magistrate failed to appreciate the defence of the
Appellant/accused that, the amount transferred by the Complainant i.e., Rs. 30
Lakhs and Rs. 70 Lakhs by way of RTGS was towards investment in Vandana
Conceptual Venture Pvt Limited, which is evident from Ex.P5 and Ex.D.2 filed by the
Appellant/accused, but not towards hand loan and by making use of the said cheques, issued by the authorized signatory of one another previous business establishment of the Appellant/accused Adda Restaurant and Bar, without adding the said establishment as party to the complaint and without pleading in the 5 complaint, to connect the accused to the said business establishment, the case was filed by the Complainant.
4) The learned Magistrate failed to appreciate that the evidence adduced by the Complainant is self contradictory and the admissions given by him during the course of cross examination, rebutting the presumptions under Section 139 and 118 of the Negotiable Instruments Act.
5) The learned Magistrate failed to appreciate that the complaint suffers from fatal defects i.e., Vandana Conceptual Venture Pvt. Limited was not joined as party, no notice was issued to the drawer of the cheque i.e., Adda Restaurant and Bar regarding nexus between the accused and the said business establishment and the learned Magistrate lost sight of the settled proposition of law that the evidence cannot be let in without there being any pleading.
6) The learned Magistrate failed to appreciate that the Appellant had successfully discharged his initial burden of rebutting the presumption by raising probable defence and onus thereafter, having been shifted to the Complainant, he had miserably failed to prove his case.
7) The learned Magistrate gave an erroneous finding that a causal or stray advancement of loan between friends does not amount to professional money lending, therefore the transaction is not hit by the provisions of Money Lenders Act and the learned Magistrate has not properly appreciated the oral and documentary and the findings given regarding the defence set by the Appellant/accused are erroneous.
8) The learned Magistrate grossly erred in convicting the Appellant/accused based on the most untrustworthy and shaky evidence of the Complainant, though the Complainant did not plead and prove that the said business establishment is of the Appellant/accused and he is the authorized signatory of it.
9) The learned Magistrate failed to appreciate that when the
Appellant/accused has to rebut the presumption under Section 139 of the 6
Negotiable Instruments Act, the standard of proof for doing so is that, of “Preponderance of Probabilities” and if the Appellant/Accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail.
8.Basing on the material available on record, grounds of appeal and rival contentions raised by both parties, the points which emerge for consideration are :-
1) Whether cheque dated: 28.03.2016 was issued by the accused, to the Complainant, towards legally enforceable debt?
2) Whether the Complainant has proved the guilt of the accused for the offence under Section 138 of Negotiable Instruments Act? And
3) Whether the accused is entitled to set aside the judgment of the trial Court dated: 31.07.2017 passed in CC No. 274 of 2016, as prayed for?
9.Heard arguments on both sides. Learned Counsel for the Appellant/accused has also filed his written arguments.
10.The appellant herein is the accused and the respondent herein is the
Complainant in C.C No. 274 of 2016 and they will hereinafter be referred as ‘complainant’ and ‘accused’ as arrayed in the above Calendar Case, for the sake of convenience.
11.Points 1 and 2:- It is the case of the Complainant that due to acquaintance between both of them, he had advanced Rs. 30 Lakhs to the accused on his request, for his business requirements by transferring the said amount through RTGS on 11.12.2013 to the account of his wife and that the accused having assured to repay the said amount with interest @ 18% per annum within six months, failed to do so and that the Cheque bearing No.418300 dated: 28.03.2016 issued by the accused for
Rs. 42,50,000/- i.e., for principle amount and interest accrued thereon was returned with an endorsement “Account Closed" and that inspite of receipt of legal notice got issued by him, the accused had neither repaid the amount nor issued any reply.
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12.As seen from the cross examination of PW.1 and grounds of appeal, the defence set up by the accused is that there was no loan transaction between himself and the Complainant as alleged and that the amount of Rs. 30 Lakhs was transferred by the Complainant through RTGS to the account of Vandana Conceptual Venture
Pvt. Limited, to which, he was Director, for the purpose of investment in it and that the cheque was issued for Adda Restaurant and Bar, but not in the personal capacity of the accused from the account maintained by him, to make out an offence under
Section 138 of the Negotiable Instruments Act and that without there being any plea in the complaint that the cheque was issued by Adda Restaurant and Bar, the
Complainant introduced Ex.P6, to connect the accused to the said business establishment during the course of evidence and the complaint is bad for nonjoinder of Vandana Conceptual Ventures Pvt. Limited and Adda Restaurant and Bar.
13.It is well settled law that initially, the burden lies upon the Complainant, to prove that the subject cheque was issued by the accused towards legally enforceable debt, by convincing oral and documentary evidence, on such proof, the burden shifts to the accused to rebut the presumption arises in favour of the Complainant under Sections 139 and 118 of the Negotiable Instruments Act.
14.The Complainant examined himself as PW.1 and got marked Ex.Ps1 to P6.
Ex.P1 is the cheque bearing No. 418300 dated: 28.03.2016, allegedly issued by the accused in favour of the Complainant for Rs. 42,50,000/-. As seen from Ex.P1, it was issued by authorized signatories of Adda Restaurant and Bar. In support of his contention that Adda Restaurant and Bar belongs to the accused, PW.1 relied upon
Ex.P6 Electronic Generated Copy of Customer Accounts Inquiry Statement. Ex.P6 was not denied by the accused, except pleading that it cannot be looked into as it was introduced during the course of evidence, without there being any plea in complaint.
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15.As seen from Ex.P2, cheque return memo, the cheque was returned with an endorsement “Account Closed". Under Ex.P3, PW.1 got issued legal notice dated:
18.04.2016 to the accused, informing about the dishonour of the cheque and demanding the repayment of amount covered by the cheque. Under Ex.P4, the said notice was served on the accused. The accused for the reasons best known to him, did not choose to give reply to the said legal notice, denying the loan transaction between both of them and did not come forward with his defence at the first instance by way of reply.
16.It is evident from Ex.P5 copy of statement of Account of the Complainant of
Indian Over Seas Bank, an amount of Rs. 30,00,100/- was transferred to the account
Vandana Conceptual Ventures Pvt. Limited in the month of December, 2013. In this regard, the defence of the accused is that it was transferred by the Complainant towards investment in Vandana Conceptual Ventures Pvt. Limited. As rightly held by the trial Court, absolutely there is no record, to prove that the said amount was transferred by the Complainant, to the said account towards investment in the said business establishment. The accused has not filed a single document to prove the business establishment of Vandana Conceptual Ventures Pvt. Limited and intention of the Complainant to invest in it or any document to prove that it was invested on such transfer, in the said business establishment. As seen from Ex.P3 Legal Notice, the Complainant had transferred Rs. 30 Lakhs through RTGS into the account of wife of the accused Vandana. The fact that the name of wife of the accused is Vandana is not denied by the accused. It is not the case of the accused that there was any agreement between both of them, regarding the investment of Rs. 30 Lakhs by the
Complainant in Vandana Conceptual Ventures Pvt. Limited. It is the specific plea of the Complainant that on the request of the accused, said amount was transferred as loan, to the account of his wife.
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17.Learned counsel for the accused though relied upon the judgment of the
Hon'ble High Court of Judicature at Hyderabad for the State of Telangana and the
State of Andhra Pradesh at Hyderabad in Criminal Appeal No. 394 of 2015
dated: 01.06.2017, the facts therein are not applicable to the present set of facts. In
the above judgment the Hon’ble High Court held that when the Complainant admitted that the amount was not disclosed in the Income Tax Returns, it would be unaccounted money and thereby it is not legally recoverable, consequently, the accused is not liable for the offence punishable under Section 138 of Negotiable
Instruments Act.
18.In the case on hand, it is not the case of the accused that the amount transferred by the Complainant to him is unaccounted money. In this regard, the evidence of PW.1 in his cross examination that he had availed Rs. 1,80,00,000/- from
Indian Overseas Bank in the year 2012 remained undenied by the accused.
Therefore, it cannot be said that it is unaccounted money.
19.The accused having vehemently resisted the case of the Complainant on the ground that Ex.P1 cheque was not issued by him to PW.1 towards legally enforceable debt, simply given vague suggestion to PW.1 during the course of his cross examination, that he did not issue Ex.P1 cheque duly in favour of PW.1 and that the contents of Ex.P1 cheque were filled up by PW.1 before its presentation into bank.
There is no denial of his signature by the accused on Ex.P1. during the cross examination of PW 1. It is not the case of the accused that his signature was forged by the Complainant on Ex.P1 cheque. It was further suggested to PW.1 that PW.1, by securing Ex.P1 cheque pertaining to Adda Restaurant and Bar through common friends, filed this false case against the accused. In this regard also, absolutely there is no explanation put forth by the accused, as to how and through which common friends, PW.1 secured Ex.P1 cheque, pertaining to Adda Restaurant and Bar and 10 whether he had lodged any complaint against PW.1 or any of his friends, for securing the said cheque or issued any notice to PW.1, for return of the said cheque. Had the
Complainant secured the said cheques through some other means, the accused would not have kept quite without taking any action against him. In the absence of the accused adducing any evidence, as to how PW.1 came into possession of Ex.P1 cheque signed by him, by examining any of their common friends, his defence in this regard cannot be accepted. Learned Magistrate in this regard held that purported signature of the accused on Ex.P1 cheque is identical with his signature on section 251 Cr.P.C, 313 Cr.P.C examinations, Ex.P4 Postal acknowledgment, Memo of
Appearance and bond filed by him in this case, therefore the contention of the accused that he did not issue the subject cheque in favour of the complainant could not be appreciated.
20.It was pleaded by the accused by way of cross examination of PW.1 and during his 313 Cr.P.C examination that the Complainant had transferred Rs.30 Lakhs through RTGS for the purpose of investment in Vandana Conceptual Ventures Pvt.
Limited on 11.12.2013. The contention of the accused that it was towards investment in Vandana Conceptual Ventures Pvt. Limited does not hold any water in the absence of any evidence to that effect.
21. Mere plea of the accused that the cheque was filled up by the Complainant is of no avail to his case as he has not denied his signature on Ex.P1 and did not adduce any evidence in support of his defence. In this regard, in a judgment of the Hon'ble
Apex Court from Punjab and Harayana (Division Bench) between Bir Singh and
Mukesh Kumar reported in 2019 Law Suit (SC) 148 it has been held that:- “A meaningful reading of the provisions of the Negotiable
Instruments Act including, in particular, Sections 20, 87, 139 makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces 11 evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.” “If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.” “The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent accused should have given or signed blank cheque to the appellant-complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them.” “In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which, a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant, being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of 12 the payee. The High Court ought not to have acquitted the respondent accused of the charge under Section 138 of the
Negotiable Instruments Act.”
22.The accused got marked Exs.D1 and D.2 during the course of cross examination of PW.1. Ex.D.1 is the copy of Form. No.32 said to be of Vandana
Conceptual Ventures Pvt Limited in which, the name of the Complainant is appearing as Director. PW.1 in this regard, has deposed that in Ex.D.1 Form No.32 under Companies Act his name finds place as Director of Vandana Conceptual
Ventures Pvt. Limited, but he is not the Director. Even Ex.D.1 is of no avail to the case of the accused to prove that Rs. 30 Lakhs was transferred by the Complainant towards investment. PW.1 had admitted Ex.D2 Statement of Account of Vandana
Conceptual Ventures Pvt Limited and that he had transferred Rs. 30 Lakhs to the said account on 11.12.2013.
23.The accused had examined the Branch Manager of HDFC Bank, Kukatpally as
DW.1. D.W.1 deposed that in Ex.P1 cheque account number is mentioned as 03642530000124 and it is a Current Account in the name of Adda Restaurant and Bar,
Kukatpally, Hyderabad and the said account was closed on 23.02.2010. D.W.1 further deposed that on the ground that it is a stale cheque, it could not have been returned because a non CTS cheque can also be honoured only on every working Monday.
The accused issuing the cheque pertaining to the closed account in favour of the
Complainant shows his bonafidies and his intention to avoid payment of amount covered by it.
24.In a judgment of the Hon'ble Apex Court between John K. Abraham and
Simon C. Abraham and another reported in (2014) 2 Supreme Court Cases 236 relied upon by learned counsel for accused, while setting aside the conviction and sentence imposed on the Appellant, the Hon'ble Apex Court held that 13 “It has to be stated that in order to draw the presumption under
Section 118 read along with Section 139 of the Negotiable Instruments
Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the Complainant.”
25.The conviction in the above judgment was set aside on the ground that the respondent was not aware of the date when substantial amount of Rs. 1,50,000/- was advanced by him to the appellant, that he was not sure as to who wrote the cheque, that he was not even aware when exactly and where exactly the transaction took place for which, the cheque came to be issued by the Appellant. Apart from the said serious lacuna in the evidence of the Complainant, he further admitted as PW.1 by stating once in the course of the cross examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the Complainant himself, by further reiterating that the amount in words was written by him.
26.In the case on hand, the Complainant has specifically pleaded and proved that Ex.P1 cheque was issued by the accused towards legally enforceable debt and the accused having set up a defence that the amount was transferred to the account of Vandana Conceptual Ventures Pvt. Limited towards investment, failed to prove the same. Therefore, the facts of the above case cannot be applied to the present set of facts. It is the accused, who failed to rebut the presumption drawn in favour of the
Complainant under Section 139 and 118 of the Negotiable Instruments Act by adducing convincing oral or documentary evidence, in support of his defence.
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27.The accused has challenged the judgment of the trail Court, on further ground that the complaint is bad for non-joinder of Vandana Conceptual Ventures
Pvt. Limited and Adda Restaurant and Bar, as parties. The accused having set up a defence that the Complainant had transferred Rs.30 Lakhs into the account of
Vandana Conceptual Ventures Pvt. Limited for the purpose of investment, as discussed in the preceding paragraphs, did not place any evidence before the Court either oral or documentary to prove the said defence or to prove that the said amount was invested by him in the said business establishment. It is not the case of the accused that there was any agreement between both of them regarding the investment by the Complainant in the said business. In the absence of any agreement, Complainant would not have invested such huge amount in it.
Undisputedly the name of wife of the accused is Vandana and the Complainant has specifically pleaded in the Complaint that on the request of the accused, he had transferred the said amount to the account of his wife. The accused admittedly had received the legal notice got issued by the Complainant under Ex.P3, stating that he had transferred the said amount to the account of wife of accused Vandana, but did not choose to reply for the same, denying the loan transaction between both of them and taking a plea that it was transferred towards investment in Vandana
Conceptual Ventures Pvt. Limited. It is not the case of the accused that he is not concerned with Vandana Conceptual Ventures Pvt. Limited and it does not belong to him. The accused has not denied his signature on Ex.P1 cheque, issued in favour of the Complainant, except pleading that by securing the said cheque through common friends, he has filed the present case against him, to get back his investment in Vandana Conceptual Ventures Pvt. Limited. The accused would not have issued Ex.P1 cheque in favour of the Complainant for the said amount, if really the said amount was transferred by the Complainant towards investment.
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Therefore, viewed from any angle, the defence of the accused in this regard, and his contention that Vandana Conceptual Ventures Pvt. Limited is necessary party to the complaint, does not deserve any consideration.
28.As far as Adda Restaurant and Bar is concerned, the accused has not set up a specific defence as to whether it is Proprietary concern or a company or a partnership firm.
29.Learned Counsel for the accused argued that, as Ex.P1 cheque was issued for
Adda Restaurant and Bar, in the absence of adding the said business establishment, the complaint is not maintainable and in this context relied upon the judgment of the Hon'ble Apex Court between Aneeta Hada and Godfather Travels and Tours
Private Limited reported in (2012) 5 Supreme Court Cases 661 wherein it was held that “Section 141 uses the term “person” and refers it to a company. The company is a juristic person. The concept of corporate criminal liability is attracted to a corporation and company and it is so luminescent from the language employed under section 141 of the Act.
The present enactment is one where the company itself and certain categories of Officers in certain circumstances are deemed to be guilty of the offence.
The Company can have criminal liability fastened on it and if a group of persons that guide the business of the companies have the criminal intent, which would be imputed to the body corporate. Section 141 of the Act clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offence under Section 138. Thus, the statutory intendment is absolutely plain.
The provision makes the functionaries and the companies to be liable and that is by deeming fiction. A deeming fiction has its own signification.” 16
30.Learned Counsel for the accused in support of his argument that the subject cheque was not issued from the account maintained by the accused and it was issued for Adda Restaurant and Bar, as such, no offence under Section 138 of
Negotiable Instruments Act was made out against him, relied upon the judgment of the Hon'ble High Court of Andhra Pradesh between D. Chandra Reddy and
Gowrisetty Prabhakar Rao and another reported in 1999 (2) ALD (Crl.) 722 (AP) and the judgment of the Hon'ble High Court of Kerala between Ameer Shah and
State of Kerala, Ernakulam reported in 2018(2) BC 162.
31.On careful reading of the above judgments of the Hon’ble Apex Court,
Hon’ble High Court of Andhra Pradesh and the Hon’ble High Court of Kerala,
this Court is of the view that the facts therein are distinguishable to the present set of facts, as in the case on hand, it is not defence of the accused that Adda Restaurant and Bar is a company or corporation or partnership firm with other authorized signatories and the accused himself admitted during the cross examination of PW.1 that by 11.12.2013 he was not doing business in the name and style of Adda Bar and
Restaurant and it was entrusted to some other persons, which shows that he owns
Adda Restaurant and Bar. The accused did not plead that any other partners or authorized signatories are there to said business and it was his specific suggestion to
PW1 that he was not doing the said business by 11.12.2013 and it was entrusted to some other persons. It is not his case that the ownership of it was transferred to some other persons. Even as per his defence, it was only entrusted to some other persons, without specifying their names. The accused has not filed any document to prove that subsequently he had entrusted the same to some other persons and as on the date of issuance of the cheque, he was not the owner of the said Adda
Restaurant and Bar. PW.1 deposed that he filed Ex.P6 to prove that the accused is the account holder and owner of Adda Restaurant and Bar. It is not the case of the 17 accused that he is not exclusive owner of it. In the absence of the accused denying his ownership over Adda Restaurant and Bar and filing any document, to prove that he entrusted the said business to some other persons, the contention of the accused that he is not concerned to the said business cannot be accepted. Therefore, the defence set up by the accused that Adda Restaurant and Bar is necessary party to the present case, cannot be accepted.
32.In view of the above discussion, the irresistible conclusion which emerges is that the offence under Section 138 of the Negotiable Instruments Act against the accused is made out by the Complainant. The trial Court has properly appreciated the factual and legal aspects involved in this case, in the light of oral and documentary evidence adduced by the Complainant and and defence evidence and authoritative pronouncements. Absolutely this Court has not seen perversity or illegality in the judgment of the trial court. Accordingly the points are answered.
Point. No. 3:-
33.In view of the discussion in Points 1 and 2, it can be held that the accused has committed the offence punishable under Section 138 of the
Negotiable Instruments Act and facts and circumstances of the case do not warrant any interference into the judgment of the trial Court dated:31.07.2017 in C.C. NO.274 of 2016. Accordingly the point is answered.
34. In the result, the appeal is dismissed under Section 386 of Cr.P.C, confirming the judgment of the Learned XXI Spl. Magistrate, Hyderabad in C.C.
No 274 of 2016 (Old C.C.No. 1069 of 2016) dated: 31.07.2017. Trial Court is directed to take necessary steps against the accused immediately for execution of the sentence. Typed to my dictation by the Stenographer Grade-I, corrected and pronounced by me in the open court, on this the 6th day of July, 2020.
ADDL. METROPOLITAN SESSIONS JUDGE
FOR THE TRIAL OF JHCBBC-CUM-
ADDL. FAMILY COURT-CUM-XXIII ADDL. CHIEF
JUDGE-CUM- IX ADDL. METROPOLITAN SESSIONS
JUDGE: HYDERABAD.
18
APPENDIX OF EVIDENCE IN APPEAL
(WITNESSES EXAMINED)
For the Appellant For the Respondent
-None-
EXHIBITS MARKED
-Nil-
ADDL. METROPOLITAN SESSIONS JUDGE
FOR THE TRIAL OF JHCBBC-CUM-
ADDL. FAMILY COURT-CUM-XXIII ADDL. CHIEF
JUDGE-CUM- IX ADDL. METROPOLITAN SESSIONS
JUDGE: HYDERABAD.
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