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2023. KHC-D:10340 CRL.A No.100019 of 2014 R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE08H DAY OF SEPTEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR CRIMINAL APPEAL NO.100019/2014 (A) BETWEEN: M/S BAGALKOT CEMENT AND INDUSTRIES LIMITED, (FORMERLY KNOWN AS KANORIA INDUSTRIES LIMITED) A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT1956 AND HAVING ITS REGISTERED OFFICE AT6H FLOOR, BLOCK NO.1, STADIUM HOUSE, VEER NARIMAN ROAD, CHURCH GATE, MUMBAI-400020. REP. BY ITS AUTHORISED SIGNATORY, MANAGER-LEGAL, MR. ABBAS RAJESAB NIDASESHI, AGE:56 YEARS, OCC:MANAGER (LEGAL), R/O:BAGALKOTE. …APPELLANT (BY SRI PAVAN HEBBALLI, ADVOCATE, FOR SRI S. B. HEBBALLI, ADVOCATE) AND:
1. M/S.HINDUSTAN ENGINEERS NIPPANI, REPRESENTED BY ITS PARTNERS, ACCUSED NOS.2 AND3 2. MR. VINAYA KUMAR MALLAPPA KOTHIWALE, AGE:
62. YEARS, OCC: BUSINESS, R/O: KOTHIWALE CHAMBERS, ASHOK NAGAR, NIPPANI.-. 2 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 3. MR. SHIVANAND MALLAPPA KOTHIWALE, AGE: MAJOR, OCC: BUSINESS, R/O. KOTHIWALE CHAMBERS, ASHOK NAGAR, NIPPANI. …RESPONDENTS (NOTICE TO R1 IS HELD SUFFICIENT; R2 AND R3 – NOTICE SERVED.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3784) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE JUDGMENT
DATED1611.2013, PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, BAGALKOTE, IN C.C.NO.797/2001 AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION138OF NEGOTIABLE INSTRUMENTS ACT IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR ORDER
S THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
Though this appeal is listed for orders, with consent of both sides, taken up for final disposal.
2. This appeal is filed by the complainant calling in question acquittal of accused for the offence punishable under section 138 of the N.I.Act by the learned Magistrate.
3. It is the case of the complainant that the complainant is a public limited company manufacturing cement and accused No.1 is partnership firm and accused Nos.2 and 3 are managing partners of accused No.1 firm.-. 3 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 It is stated that, complainant has been supplying cement to the accused and towards part payment of cost of cement supplied by the complainant, accused have issued cheque of Rs.1,00,000/- and when said cheque was presented to the bank, it was returned with endorsement of the bank as insufficient funds. Therefore after completing the statutory formalities, complainant has filed a private complaint under section 200 of Cr.P.C. against accused for the offence punishable under section 138 of the N.I.Act.
4. On behalf of complainant, legal manager is examined as PW.1 and got marked Exs.P.1 to P.18 and on behalf of accused, two witnesses have been examined as DW.1 and DW.2 and got marked Exs.D.1 to D.7.
5. The learned Magistrate acquitted the accused on the reason as discussed in the judgment that the evidence led by PW.1 regarding transactions narrated in the evidence and documents produced are not found in the complaint averments. Therefore by disbelieving the - 4 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 evidence of PW.1 and rejecting the documents Exs.P.1 to P.18, acquitted the accused for the alleged offence.
6. Heard the arguments on both side and perused the records.
7. The complainant has got issued legal notice as per Ex.P.4 on 10.02.2001 after receiving endorsement from the bank that the cheque was dishonoured and in the legal notice it is simply stated the cheque issued by accused No.2 is dishonoured, therefore, called upon accused to pay the amount. No doubt in the complaint and in the legal notice detailed averments are not stated. The issuance of cheque as per Ex.P.1 by accused No.2 is not disputed. But it is the defence taken by the accused that the said cheque is issued as a security. Since DW.2 B.R.Patil has a firm in Nippani town got supplied cement from complainant and at that time the world bank has launched a project. Therefore for that project the said DW.2 B.R.Patil was receiving cement and the said B.R.Patil had executed general power of attorney as per Ex.D.4 in - 5 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 favour of accused No.2 and therefore, accused No.2 had issued cheque as a security and that is misused by the complainant. This is the defence put forth by the accused.
8. The complainant has filed a private complaint under section 200 of Cr.P.C. making allegations against accused that accused has committed offence of dishonour of cheque attracting the penal provision of section 138 of the N.I.Act. So, fundamentally filing of private complaint under section 200 of Cr.P.C. is setting the criminal law into motion. The gist of offence committed by the accused is sufficient to write in the complaint. No detailed pleading is necessary while filing the private complaint. This is not a civil suit so as to plead every detail and minute aspect in the complaint. The concept of without pleading in the complaint, evidence tendered cannot be considered is not applicable in criminal cases and criminal nature cases. Section 200 of Cr.P.C. stipulates as follows:
200. Examination of complainant.—A Magistrate taking cognizance of an offence on complaint shall examine upon oath the - 6 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses— (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
9. It is coming under Chapter XV under the caption ‘Complaints to Magistrate’. What is a complaint is defined in Section 2(d) of Cr.P.C. as follows:
2. (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.-. 7 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.
10. Complaint means any allegation made either orally or in writing to a Magistrate inviting attention of the Magistrate to take action under the Cr.P.C. that some person has committed an offence. Therefore it is sufficient that the complainant has to state gist of offence committed by the accused, but not pleadings in detail as it is required in civil suit. Also the complaint does not include police report. Therefore, taking cognizance of the offence by the Magistrate is otherwise than on police report. Therefore, when offence is stated to have been committed, it is sufficient in the complaint to be filed under section 200 of Cr.P.C. to narrate who has and in what way the offence is committed. Therefore, strict rules of pleadings is not applicable. Even though the evidence in these cheque bounce cases are considered on the principle - 8 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 of preponderance of probabilities, but cheque bounce case is made a punishable offence under section 138 of the N.I.Act. Therefore the proceedings in these type of cases are quasi criminal and quasi civil in nature. Therefore, what the complainant is required to do is to tender evidence in support of his complaint as to how the accused has committed offence. Therefore, on these principles, just because in detail and in minute the manner of offence is not stated in the complaint filed under section 200 of Cr.P.C. and evidence is tendered, then the complaint cannot be thrown out as there are no pleadings in the complaint. This is completely lost sight by the learned Magistrate.
11. In the complaint gist of offence committed by accused is sufficient. PW.1 in his examination-in-chief has narrated in detail the transactions took place between the complainant and accused and has got marked documents at Exs.P.1 to P.18. The learned Magistrate even though in detail has discussed and appreciated the evidence on - 9 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 record, but while appreciating evidence on record has simply stated that whatever oral and documentary evidence stated by PW.1 does not find place in the complaint. Therefore the version of complainant is not believable. This is the reason assigned by the learned Magistrate while acquitting the accused.
12. But here, the transactions between complainant and accused are to be appreciated. The accused No.2 even though has stated that accused never transacted with complainant for purchasing cement bags, but accused No.2 being examined as DW.1 deposed that he knows DW.2 B.R.Patil and the said B.R.Patil had taken contract work from the world bank project and therefore in the background of contract, the said B.R.Patil had executed power of attorney as per Ex.D.4 and he was receiving cement but not by accused No.2. When this evidence is considered, when accused No.2/DW.1 was managing the affairs of the firm on behalf of DW.2 B.R.Patil, and received the general power of attorney from DW.2, - 10 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 whatever transaction of purchasing cement from complainant is considered to be made by accused No.2. DW.2 B.R.Patil in his evidence has also stated the same thing that he has executed power of attorney in favour of accused No.2 as per Ex.D.4.
13. DW.2 B.R.Patil in his evidence has stated that in order to carryout the world bank project, therefore for purchasing cement from complainant, he has given power of attorney as per Ex.D.4 in favour of accused No.2. This evidence proves that the accused have transacted with the complainant for purchasing cement. It is evidence on behalf of PW.1 that on various occasions the complainant industry had supplied 103 metric tons of cement and the accused had issued cheques in favour of complainant industry. In order to prove that there were transactions between complainant company and accused, and accused have issued a cheque during regular business transaction between them and at one point of time the cheque issued by the accused was dishonoured compelling the - 11 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 complainant to file suit in O.S.No.84/2004, before the Civil Court and obtained judgment and decree as per Ex.P.10 and P.11 in favour of complainant for recovery of amount from the accused.
14. These documents prove that there were regular transactions between complainant and accused for supply of cement. In this regard there was a notice got issued by complainant to accused as per Ex.P.13, making demand by complainant to accused for payment of amount. There are also sufficient letters produced by complainant as Exs.P.7 to P.9 which prove regular transactions between complainant and accused for purchasing of cement from complainant. When all these evidence produced before the learned Magistrate, even though the learned Magistrate has appreciated the evidence on record that offence is committed, but it is opinion given by the Magistrate that the averments made in the examination-in-chief affidavit and documentary evidence produced during the trial are not found place in the complaint, therefore, case of the - 12 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 complainant is not believable. This observation of the learned Magistrate of the trial Court is not correct. This is not a suit of civil nature so as to plead every minute aspect and to produce evidence as per pleadings in civil suit.
15. The present case is criminal in nature even though having summoned witnesses and considering the evidence on theory of preponderance of probabilities, but just on omission of pleading in the complaint, the evidence produced are not believable is not a correct approach by the learned Magistrate. Filing of complaint is to bring to the notice of Court to take cognizance of the alleged offence whether prima facie case is made out or not to proceed against the accused and for this purpose only filing of complaint is necessary. But that does not mean that each and every pleading is to be stated in the complaint as if in the civil suit. Therefore in order to prove the offence committed by accused, complainant has produced evidence and also the learned Magistrate has - 13 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 accepted the said evidence, but rejected in total in a single opinion that the evidence tendered are not found place in the complaint. Therefore in this regard the approach of the learned Magistrate is not correct.
16. Ex.P.12 is the statement of accounts of complainant firm/industry which proves that there were regular transactions between complainant and accused. Therefore, when there are evidence found as discussed above and also as discussed by the learned Magistrate that there are regular transactions between complainant and accused that complainant was supplying cement to accused and towards discharge of said debt, cheque issued is amounting to discharge of legally enforceable debt. Therefore, when the accused have admitted issuance of cheque Ex.P.1, and there was a regular transaction between complainant and accused regarding supply and purchase of cement, issuance of Ex.P.1 cheque is towards discharge of legally enforceable debt. Therefore, presumption arises as per Section 118 and Section 139 of - 14 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 the N.I.Act in favour of the complainant. The said presumption is not rebutted by the accused. Therefore the complainant has made out a case against accused that accused are guilty of offence under section 138 of the N.I.Act. Therefore, accused Nos.2 and 3 being managing partners of accused No.1 firm, are held guilty of offence under section 138 of the N.I.Act. Therefore judgment of acquittal passed by learned Magistrate is laible to be set aside. It is hereby held that all accused are guilty of offence punishable under section 138 of the N.I.Act. Accordingly I proceed to pass the following: ORDER
i) The appeal is allowed. ii) The judgment of acquittal dated 16.11.2013, passed by the Prl. Civil Judge and JMFC, Bagalkote, in C.C.No.797/2001, is hereby set aside. iii) The accused Nos.1 to 3 are held guilty of offence punishable under section 138 of the N.I.Act, 1881.-. 15 - NC:
2023. KHC-D:10340 CRL.A No.100019 of 2014 iv) The accused No.1 is firm and accused Nos.2 and 3 are managing partners of the accused No.1 firm, therefore the accused Nos.2 and 3 are sentenced to pay a fine of Rs.1,50,000/- to the complainant. Out of the said fine amount, all the accused shall pay a fine of Rs.1,40,000/- to the complainant and remaining Rs.10,000/- shall be remitted to the State. v) In default to pay the fine amount above stated, accused Nos.2 and 3 shall undergo simple imprisonment for a period of six months. vi) Send back the trial court records along with a copy of this judgment so as to secure the presence of accused Nos.2 and 3. SD/- JUDGE MRK List No.:
3. Sl No.:
1. CT: ASC.