It clearly shows under the guise of execution of any summons or warrant served on the accused in the crime registered by police, after referring the complaint to the police by the Court, P.Ws. 1 and 2 along with Sub Inspector and Head Constable, went to the house of the accused at Mumbai. There are no details what was the time taken for the said settlement and how the accused is responsible for the amount of Rs. 35,00,000/-, which was given to the father of the complainant and how the said amount of Rs. 35,00,000/- was arrived at Rs. 25,00,000/- in settlement, which are material facts but for mentioning as if a settlement already arrived and the five cheques were issued which include Ex. P.3. That also probablises the defence version apart from the complaint as well as evidence of P.Ws. 1 and 2 also silent regarding proof how the sum of Rs. 35,00,000/- was paid if at all to the accused when and by what source. The defence of the accused that his father was running that entity and after his death it became defunct and he was not even Director by then and not responsible for it and it is under the threat and force through police, P.Ws. 1 and 2 obtained the signatures on the blank cheques and on the so-called undertaking letter in the absence of showing the said amount due by the accused much less of Rs. 35,00,000/- and there from settlement of Rs. 25,00,000/- and how and why mere filing of a cheque is not sufficient despite the evidence of the accused and reply notice Ex. P.9, which is sometime prior to the presentation of the cheque and that too having filed the private complaint including this cheque and the allegations of cheating for non-payment, the survival of the cause of action for its dishonour also doubtful from the complainant version leave that as it is not a matter of dispute or controversy for any finding therein for purpose of the accused even taken it is after filing of the so-called cheating case and so-called Exs. P.2 and P.3 along with other cheques given, those show the complainant entity represented by P.Ws. 1 and 2 through police force went to the accused under the guise of securing his presence before the court in Cr. No. 29 of 2004 pending under the police investigation under threat and force, obtained signatures and misused the same and there is no legally enforceable debt. There is nothing to rebut the same even from cross-examination of D.W. 1 in this regard by producing any material regarding giving of Rs. 35,00,000/- much less to the accused and otherwise liability for the same by the accused and what the law laid down by the Apex Court in Narayan Menon (supra) in discharge of burden on the part of the accused in rebutting the presumptions if at all available against the accused under Section 118 and 139 N.I. Act is need not by coming to the witness box suffice even from showing preponderance of the probabilities of the version by putting to the fact the complainant and witnesses and by confronting with the documents and the accused need not disprove the case of the complainant, he can discharge even by direct or circumstantial evidence is said probable evidence to rebut the defence. In this case not only the suggestions to P.Ws. 1 and 2, but also admissions from the evidence of P.Ws. 1 and 2 in the cross-examination co-relating to Ex. P.2 date and contents therefrom substantiating the defence version that Ex. P.3 cheque and other cheques were obtained under threat and force by the complainant entity officials including P.Ws. 1 and 2 through Police force and thereafter proved that he is not liable for the amount and there is no legally enforceable debt or other liability as rightly concluded by the trial Court's with that finding supported by reasons from the factual matrix with reference to the law settled supra. Hence for this Court while sitting in appeal, there is nothing to interfere. Accordingly, point No. 1 is answered.
Equivalent Citation: 2015 (2) ALT (Crl.) 280 (A.P.),2015CRLJ(NOC)392 (HYD)
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Criminal Appeal No. 1512 of 2007
Decided On: 04.06.2014
Inden Power International Ltd.
Vs.
Chandan Pandya
Vs.
Chandan Pandya
Hon'ble Judges/Coram:Dr. B. Siva Sankara Rao, J.
1. The unsuccessful complainant filed the appeal assailing the acquittal judgment, dated 21.03.2007, passed by the learned III Metropolitan Magistrate, Cyberabad, at L.B. Nagar, Hyderabad, in S.T.C. No. 474 of 2005 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, 'N.I. Act').
2. The brief facts of the case are that the complainant entity is represented by its Authorized Signatory covered by Ex. P.1 Board Resolution, dated 10.01.2006, modified by the earlier authorization of the Board, dated 21.04.2005 in favour of one Sri P. Ekambara Rao. The accused was running the business in the name and style of Dhanastra Capital Limited and approached the complainant to provide foreign funding for the Mini Power Project in Andhra Pradesh and compelled to part with Rs. 35,00,000/- for so providing. In good faith by accepting the proposal of the accused, the complainant deposited the said amount. However, the accused failed to provide the foreign fund by committing breach of trust and started giving evasive replies to refund the amount. After repeated demands, by saying that the entity of accused was in crisis after expiry of his father, who was Managing Director of Dhanastra Capital Limited, came for negotiations and agreed to settle the issue to refund of Rs. 25,00,000/- instead of Rs. 35,00,000/- and executed Ex. P.2 undertaking letter, dated 20.11.2004 and issued five post dated cheques promising to discharge the liability in due course. Ex. P.3 cheque bearing No. 270363, dated 31.05.2005 for Rs. 5,00,000/- drawn at H.S.B.G., Andheri, West Mumbai is one of the five cheques. When it was presented, the same was dishonoured with an endorsement payment stopped by the drawer along with Ex. P.4 bankers memo dated 03.06.2005, which made the complainant to issue Ex. P.5 statutory notice, dated 22.06.2005. Exs. P.6 and P.7 are registered postal receipt and certificate of posting acknowledged by accused under Ex. P.8 and the accused issued Ex. P.9 reply dated 14.05.2005 (though there is a statement in the complaint as if no reply was given the same was exhibited in the evidence of complainant P.W. 1), but no payment was made. Hence the complaint.
3. After recording sworn statement of the complainant, the case was taken cognizance; when the accused who appeared before the Court pursuant to the summons and after supply of case copies under Section 207 of the Code of Criminal Procedure (for brevity, "Cr.P.C"), was questioned on substance of accusation under Section 251 Cr.P.C., he pleaded not guilty.
4. During the course of trial, on behalf of the complainant, P.Ws. 1 and 2 and got marked Exs. P.1 to P. 11. On behalf of the defence, the accused himself was examined as D.W. 1 and got marked Exs. D.1 and D.2.
5. After completion of the evidence on the side of the complainant, the accused was examined under Section 313 Cr.P.C., and he denied the incriminating material put to him.
6. After appreciation of the evidence, both oral and documentary, the trial Court held that the complainant failed to prove the allegation levelled against the accused and acquitted him. Impugning the same, the complainant preferred the present appeal.
7. The contentions in the grounds of appeal as well as the submissions of the learned counsel appearing for the appellant are that the lower Court's acquittal judgment is contrary to law, weight of evidence and probabilities of the case; and the Court below went wrong in dismissing the complaint with no basis and hence to allow the appeal by setting aside the acquittal judgment of the lower Court and to punish the accused according to law.
8. The learned counsel appearing for the respondent-accused, on the other hand, represents that the lower Court on proper appreciation of oral and documentary evidence arrived at right conclusion that the complainant failed to prove the cheque was issued in discharge of legally enforceable debt and found the accused not guilty; that there are no merits in the appeal, hence to dismiss the appeal confirming the lower Court's acquittal judgment supported by reasons for nothing to interfere.
9. Now the points that arise for consideration are:
(1). Whether the cheque for Rs. 5,00,000/- issued by the accused is towards dischargal of legally enforceable debt?
(2). To what result?
In re. Point No. 1:
10-(A). Before adverting to the merits of the matter, it is beneficial to quote; the provisions incorporated in Chapter XVII of the N.I. Act make a civil transaction to be an offence by fiction of law and with certain (rebuttable) presumptions that shall be drawn. Sections. 138 to 142 are incorporated in the N.I. Act, 1881 as Chapter XVII by the Banking Public Financial Institutions and Negotiable instruments Laws (Amendment) Act, 1981 (66 of 1988) which came into force w.e.f. 01-04-1989 and the N.I. Act was further amended by Act, 2002 (55 of 2002) which came into force w.e.f. 06-02-2003 incorporating new sections 143 to 147 in this Chapter XVII and further some of the existing provisions not only of the Chapter XVII but also of other Chapters amended to overcome the defects and drawbacks in dealing with the matters relating to dishonour of cheques.
10-(B). The object and intention of these penal provisions of Chapter XVII (Sections 138-147), in particular, Sections 138 & 139 (besides civil remedy), are to prevent issuing of cheques in playful manner or with dishonest intention or with no mind to honour or without sufficient funds in the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course to act upon it. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Since a cheque that is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the latter's unexpected disappointment, these provisions incorporated are in order to provide a speedy remedy to avoid inconvenience and injury to the Payee and further to encourage the culture of use of cheques and enhancing credibility of the instruments as a trustworthy substitute for cash payment and to inculcate faith in the efficacy of Banking operations - Goa Plast (Pvt.) Ltd. v. Chico Ursula D'souza MANU/SC/0200/2003 : AIR 2003 SC 2035.
10-(C). To fulfill the objective, the Legislature while amending the Act has made the following procedure:
In the opening words of the Section 138 it is stated: "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid,---------, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act (See Sec. 143), be punished Provided, nothing contained in this section shall apply unless,-(a), (b); and (c) Explanation--(supra)."
"(i) Under Section 138 a deeming offence is created by fiction of law.
(ii) An explanation is provided to Section 138 to define the words "debt or other liability" to mean a legally enforceable debt or other liability."
(iii) In Section 139, a presumption is ingrained that the holder of the cheque received it in discharge of debt or other liability.
(iv) Disallowing a defence in Section 140 that drawer has no reason to believe that cheque would be dishonoured.
(v) As per Section 146 (new section) the production of the Bank's slip or Memo with official mark denoting that the cheque has been dishonoured is prima facie evidence for the Court to presume the fact of dishonour of such cheque unless such fact is disproved by the accused.
10-(D). Further the provision for issuing notice within fifteen days (amended as thirty days by the amended Act, 55 of 2002, w.e.f. 06-02-2003) under section 138 after dishonour is to afford an opportunity to the Drawer of the cheque to rectify his mistakes or negligence or in action and to pay the amount within fifteen days of receipt of notice, failing which the drawer is liable for prosecution and penal consequences.
10-(E). Reasonability of cause for non-payment is not at all a deciding factor. Mens rea is irrelevant. It is a strict liability incorporated in public interest.
10-(F). Availability of alternative remedy is no bar to the prosecution
10-(G). In the words-where any cheque, the word any suggests that for whatever reason if a cheque is drawn on an account maintained by him with a Banker in favour of another person for the discharge of any debt or other liability, the liability cannot be avoided in the event of the cheque stands returned by the Banker unpaid.
10-(H). In Suman Sethi v. Ajay K. Churiwal and Another MANU/SC/0062/2000 : (2000) 2 SCC 380, it was held of the legislative intent as is evident from Section 138 of the Act that, if for the dishonoured cheque demand is not met within 15 days of the receipt of the notice, the drawer is liable for conviction. If the cheque amount is paid within above period or before the complaint is filed, the legal liability under Section 138 ceases to be operative and for the recovery of other demands such as compensation, costs, interest etc. separate proceedings would lie. If in a notice any other sum is indicated in addition to the amount covered by the cheque that does not invalidate the notice.
11-A. In K.N. Beena v. Muniyappan & Another MANU/SC/0661/2001 : (2001) 8 SCC 458 at paragraph 7, it was observed: In this case admittedly the accused has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denial of averments in his reply dated 21.5.1993 were sufficient to shift the burden of proof on to the complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The accused had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The accused not having led any evidence could not be said to have discharged the burden of proving that the cheque was not issued for a debt or liability.
11-AA. No doubt, this approach of accused has to lead cogent evidence during trial in rebutting the presumptions and in proof of his defence, is explained by Apex Court in Narayan Menon v. State of Kerala (2006) 3 SCC 30 as follows:
11-B. The Apex Court in Narayan Menon (supra) held that once the complainant shown that the cheque was drawn by the accused on the account maintained by him with a banker for payment of any amount in favour of the complainant from out of that account for its discharge and the same when presented returned by the Bank unpaid for insufficiency of funds or exceeds arrangement, such person shall be deemed to have been committed an offence under Section 138 of N.I. Act. What Section 139 of the Act speaks of the presumption against the accused to rebut is the holder of a cheque received the cheque of the nature referred in Section 138 of the Act for discharge of debt. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Accused need not enter into the witness box and examine other witnesses in support of his defence. Accused need not disprove the prosecution case in its entirety. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
11-C. There are presumptions (besides the general presumptions under the Indian Evidence Act) specially provided in respect of a negotiable instrument under Section 118 clauses (a) to (g) of the Act and for the dishonour of cheque relating to criminal liability under 139 and apparently a legal fiction though strictly not as per the Explanation to Section 138-of the Act, for the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
Section 118: Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made:
Clause (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration, (b) to (g)--"Section 139: Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Presumptions both under Sections 118(a) and 139 of the Act are rebuttable in nature.
What would be the effect of the expressions 'May Presume', 'Shall Presume' and 'Conclusive Proof has been considered by the Apex Court in Union of India (UOI) v. Pramod Gupta (D) by L.Rs. MANU/SC/0549/2005 : (2005) 12 SCC 1, in the following terms: It is true that the legislature used two different phraseologies "shall be presumed" and "may be presumed" in------but the same would not mean that the words "shall presume" would be conclusive. The meaning of the expressions "may presume" and "shall presume" have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression "shall presume" cannot be held to be synonymous with "conclusive proof. In terms of Section 4 of the Evidence Act, whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
The Apex Court in its later expression in Kumar Exports Pvt. Ltd. v. Sharma Carpets MANU/SC/8414/2008 : (2009) 2 SCC 513 held in this regard that-presumptions that applied among clauses (a) to (g) of Section 118 also, like the presumption under Section 139 of the Act, as per Section 4 of the Evidence Act, are the rebuttable presumptions for which the burden is on the accused. However, to rebut the presumptions if a case is made out by accused either by pointing out from the case of the complainant including very documents and cross-examination or by examining any person and need not be always by coming to witness box as laid down in Narayan Menon(supra) and Krishna Janardhan Bhat v. Dattatraya G. Hegde MANU/SC/0503/2008 : AIR 2008 SC 1325.
11-D. Further, as per the expression of the Apex Court in Rangappa v. Mohan MANU/SC/0376/2010 : AIR 2010 SC 1898 (3-Judges Bench) paras-9 to 15 referring to Goa Plasts (supra), Krishna Janardhan Bhat (supra) by distinguishing at para-14 saying the observation in Krishna Janardhan Bhat (supra) of the presumption mandated by Section 139 does not indeed include the existence of a legally enforceable debt or liability is not correct, though in other respects correctness of the decision does not in any way cause doubted; by also referring to Hiten P. Dalai v. Bratindranath Banerjee MANU/SC/0359/2001 : AIR 2001 SC 3897 holding at paras-22 and 23 therein of the obligation on the part of the Court to raise the presumption under 138, 139 and 118 of the N.I. Act, in every case where the factual basis for raising the presumption has been established since introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused, as a presumption of law distinguished from a presumption of fact as part of rules of evidence and no way in conflict with presumption of innocence and the proof by prosecution against the accused beyond reasonable doubt, but for saying to rebut the accused can discharge the burden showing reasonable probability of non-existence of the presumption of fact and to that proposition, the earlier expression in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal MANU/SC/0123/1999 : AIR 1999 SC 1008 para-12 showing the burden on the accused is to bring on record by preponderance of probability either direct evidence or by referring to circumstances upon which he relies, rather than bare denial of the passing of the consideration; apparently that does not appear to be of any defence, to get the benefit in discharge of the onus against, also held referring the M.M.T.C. Ltd. and another v. Medchl Chemicals & Pharma (P) Ltd. MANU/SC/0728/2001 : AIR 2002 SC 182 that where the accused able to show justification of stop payment letter even from funds are there, but no existence of debt or liability at the time of presentation of cheque for encashment to say no offence under Section 138 of the N.I. Act made out in discharge of the burden. It was concluded referring to the above, including of Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm & Ors. MANU/SC/2555/2008 : AIR 2008 SC 2898 paras-14 and 15 that the initial presumption lays in favour of the complainant and Section 139 is an example of a reverse onus clause, which has been included in furtherance of the legitimate objection of improving the credibility of the negotiable instruments. While Section 138 specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions and the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused cannot be expected to discharge an unduly high standard or proof and in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden to discharge by preponderance of probabilities by raising creation of doubt about the existence of a legally enforceable debt or liability to fail the prosecution and for that the accused can rely on the material submitted by the complainant also in order to raise such a defence and he may not need to adduce any evidence of his own.
11-DD. It was also observed in para-15 that the accused appear to be aware of the fact that the cheque was with the complainant, further-more the very fact that the accused has failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version. It was also held by this court way back in Chapala Hanumaiah v. Kavuri Venkateshwarlu 1971 (1) An.W.R. 65 that having received and acknowledged the statutory legal notice after dishonour of cheque, non-giving of reply to said legal notice, improbablises the defence version, as any prudent person under the said circumstances should have, but for no defence to reply.
11-E. If at all, there is any payment including part payment or adjustment to be considered for deduction while enforcing the amount covered by the dishonoured cheque for its consequences, the burden is on the accused as per settled law to prove said discharge or adjustment. In this regard, in M/s. Thekkan and Company v. M. Anitha MANU/KE/0441/2003 : 2004 Crl. L.J. 58, it was held by the Kerala High Court that nothing precludes the Court under Section 138 of the Act for taking into account prior payments made before the presentation of the cheque or before receipt of notice in deciding whether the amount due under the cheque has been fully paid, if not for continuing the prosecution. In another expression of same High Court in R. Gopikuttan Pillai v. Sankara Narayanan Nair MANU/KE/0489/2003 : 2004 (1) BC 34 also it was held that accused is bound to prove payment of entire amount within 15 days of receipt of notice and any part payment made before or after notice cannot absolve liability from the criminal prosecution under Section 138 of N.I. Act and thereby the trial Court went wrong in acquitting the accused for part payment made and not of the entire due under the cheque.
11-F. Coming to the validity of filing the case by Complainant against the accused, if any of them a legal entity, somebody-a human agency must represent the legal entity, if it is a complainant, in filing complaint, giving sworn statement and to give evidence during trial.
11-F(i). On the question of complaint filed by legal representatives or the Power of Attorney Holder is maintainable or not and the Power of Attorney Holder is competent to give evidence or not, by interpretation of Section 142(a) r/w. Section 138 of the NI Act, three Judge Bench of the Apex Court in A.C. Narayanan v. State of Maharashtra (Crl Appeal No. 73-2007) & Shri G. Kamalakar v. M/s. Surana Securities Ltd. (A.P)-(SLP-Crl No. 2724-2008) : 2014 (1) ALT (Crl) 44 (SC) held, referring to M.M.T.C. Ltd. (supra) & IV. Bhojwani v. Indusind Bank Ltd. MANU/SC/1030/2004 : AIR 2005 SC 439 holding that there is no serious conflict between the two expressions and that a legal representative or Power of Attorney Holder of the complainant can no way barred to file complaint and to appear for hearings and also can verify on oath and depose in Court on behalf of the complainant, but not in own name of the Power of Attorney Holder. It is open to the Magistrate for that to rely on the affidavit filed by complainant. An explicit assertion as to knowledge of Power of Attorney Holder about the transaction must be specific in the complaint, as the Power of Attorney Holder who has no knowledge about the transaction, cannot be examined as a witness. A power of attorney cannot however delegate his functions to another person without specific clause permitting the delegation in the power of attorney.
11-F(ii). Coming to liability of the legal entity as accused, besides the entity the persons responsible for its day-today affairs even personally concerned: Section 141 of the Act is an instance of specific provision that in case an offence under Section 138 is committed by a company, the criminal liability for dishonour of a cheque will extend to the officers of the company. As a matter of fact, Section 141 contains conditions which have to be satisfied before the liability can be extended. Inasmuch as, the provision creates a criminal liability, the conditions have to be strictly complied with. In other words, the persons who had nothing to do with the matter, need not be roped in. An entity being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the acts done in its name are sought to be made personally liable for the acts which result in criminal action being taken against the entity. In other words, it makes every person, who, at the time of commission of offence, was in-charge of and responsible for the conduct of business of the entity, as well as the entity, liable for the offence. It is true that the proviso to sub-section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability.
11-F(iii). In this regard, in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla Appeal (crl.) 664 of 2002, dated 20/09/2005 (3 Judges Bench) held in answering to the questions posed in the Reference as under:
"(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.
(b) The answer to question posed in sub-para (b) has to be in negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.
(c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office, they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141. The Reference has been answered."
11-F(iv). Further the full bench of this Court in K. Ramachandra Rao v. State of A.P. MANU/AP/1148/2004 : 2005 (2) ALT-27 (FB) held the same, with observations at para-14 that if a Company or other Juristic person gives the complaint, it cannot be examined. Somebody on its behalf who can speak about the facts of the case would be examined when he presents the complaint on behalf of the juristic person and the same analogy applies even to a power of attorney holder.
11-G. However, where accused or complainant a proprietary concerned, proprietary concern is not a separate juristic entity, other than the individual styling with that name being its proprietor and thus there is no application of the above propositions, but for to the extent of his L.Rs. or GPA to represent. This Court in Rohit Parushram and others v. Dhiraj Rawal and others MANU/AP/0656/2005 : 2005 (CriJ) 4209(AP) held at para-5 that, for cheque drawn by accused as proprietor of proprietary concern, the proprietary concern was not made party co-accused with the proprietor in individual name, makes no difference because liability of proprietary concern and proprietor is joint and several.
11-H. The non examination of a material witness to the case or non-filing of a material document is fatal to the case of the complainant vide decisions in C. Antony v. K.G. Raghavan Nair MANU/SC/0968/2002 : AIR 2003 SC 182 and Narayan Menon (supra).
12. From the above legal position, coming to decide on the facts from oral, circumstantial and documentary evidence, how far it proved the case of the complainant and from drawing of presumptions and inferences if any, how far they were rebutted by accused are concerned, P.W. 1 deposed that there are two bank accounts in the name of the Company, one is at Indian Bank, Mallapur and another at State Bank of India, Nacharam and the accused issued Ex. P.9 reply, dated 14.05.2005, which is prior to receiving of the statutory notice under Ex. P.5 dated 22.06.2005 and the complainant Company initiated a separate criminal proceeding earlier before the XI Metropolitan Magistrate Court, Secunderabad, that private complaint was referred to police and the same was registered in Cr. No. 29 of 2004; the complainant company is aware of the death of father of the accused by name Devendar Pandya, who is Managing Director of Dhanastra Capitals Limited. He further deposed that Ex. P.2 letter dated 20.11.2004 given by the accused (D.W. 1) was at Mumbai at the instance of one Venkatanarayana (P.W. 2), Sub Inspector of Police by name Sundeep Reddy and Hussain, Head Constable of Tirumalagiri Police Station and the accused also filed a complaint against the complainant Company and its representatives before the Oshiwara Police Station on 24.11.2004 in that regard.
13. P.W. 2, who is Managing Director of complainant's company, deposed that he did not pay the amount to the accused and he has no personal knowledge, regarding the same and there is no proof or any document filed in this case to show that the accused is or was Director of the Dhanastra Capital Limited and he is also one of the persons visited the house of the accused on 20.11.2004 i.e., on the date of execution of Ex. P.2.
14. The defence of the accused is that he never received an amount of Rs. 35,00,000/- and he was not even the Director of Dhanastra Capital Limited, but for his father, the Managing Director of Dhanastra Capitals Limited, who died in the year, 2001; the Ex. P.2 undertaking letter was made to execute by him by P.Ws. 1 and 2 along with Sub Inspector of Police, Tirumalagiri Police Station, by name Sundeep Reddy and one Hussain, Head Constable, at Mumbai under threat and force obtained his signatures on blank papers and fabricated the same subsequently and they also obtained five blank cheques bearing Nos. 270358 to 63, under the threat and force of pending case in Cr. No. 29 of 2004 of P.S. Tirumalagiri; the accused has also filed a complaint before Oshiwara Police Station against P.Ws. 1 and 2 for obtaining signatures on blank cheques and blank stamped papers under threat and force. He deposed in his evidence that his father late Devendar Pandya informed that he did not take any amount from complainant Company for securing foreign funding and after death of his father, the consultancy of Dhanastra Capital Limited entity was closed since there is no one to look after the business of his father and he is nothing to do with it and that this cheque is one of the five blank cheques obtained by force and misused the same. It was admitted that the signatures on the cheque (Ex. P.3) and the signature on the undertaking letter (Ex. P.2) as that of accused saying that they were obtained by force and he also reported to the police of Oshiwara police station on 24.11.2004. At the time P.Ws. 1 and 2 Sub Inspector of Police, Tirumalagiri by name Sundeep Reddy and Head Constable by name Hussain proceeded to the house of the accused at Mumbai, his old aged mother and four years daughter were only present in the house. In this regard, as to how far the said defence version is probable, so also how far the case of the complainant concerned regarding voluntarily giving of the cheque in compliance of undertaking letter executed by the accused and the same is supported by any legally enforceable debt said to have been borrowed by the accused concerned, Ex. P.9 reply notice of the accused, dated 14.05.2005 shows that the accused never assured any kind of services to the complainant and never obtained any amount of Rs. 35,00,000/- from the complainant and never met the complainant nor entered into any kind of agreement to arrange foreign funds and the accused is only an employee Director of the entity belongs to his father and his father by name Devendar Pandya was Managing Director of the entity. At the relevant time, the accused was not even the Director and his father was only looking after the day-to-day affairs of the Company and thereby Dhanastra Capital Limited is a separate legal entity and with the day-to-day affairs, the accused is no way concerned and that said entity became defunct in the year, 2001-02 after expiry of its Managing Director Devendar Pandya on 25.08.2005 and there were no discussions by complainant with accused much less any demand for alleged amount or arriving of settlement at Rs. 25,00,000/- or his execution of the so-called undertaking letter (Ex. P.2). In fact on 20.11.2004 the complainant accompanied by two men in the guise of police, forcibly entered into the premises of the accused and took five cheques and the cheque numbers were also given which include Ex. P.3 cheque for Rs. 5,00,000/-, dated 31.05.2005 and he reported to the local police and also submitted a complaint mentioning these facts, thereby denied issuing of any cheque, in discharge of any kind of liability, including the execution of any undertaking letter and liability thereunder and to return the documents stating those were illegally obtained and unenforceable.
15. Even coming to the contents of Ex. P.2, which was dated 20.11.2004, it shows as if executed at Andheri (W), Mumbai in the premises of accused by referring to Cr. No. 29 of 2004 of Trimalgherry Police Station for the offences punishable under Sections 406 and 420 IPC, relating to the so-called five cheques, which include the Ex. P.3 cheque filed in this case saying five post dated cheques given for refund of Rs. 25,00,000/- in all for the default in arranging the foreign funding to the proposed Power Project as per the discussions and settlement, though the actual amount taken was Rs. 35,00,000/- agreed for settlement at Rs. 25,00,000/- by way of cheques. A perusal of Ex. P.2 shows it is a typed matter, already cause prepared and obtained the signature of the accused in between lines, that probablises the defence version and it is not a mere settlement or undertaking letter saying how Rs. 35,00,000/- taken and by whom and how the accused liable besides bereft of those particulars stated as if five post dated cheques issued by the accused with respective dates with respective amounts post dated in saying the Ex. P.3 cheque is also one of them in reference to Cr. No. 25 of 2009.
16. It clearly shows under the guise of execution of any summons or warrant served on the accused in the crime registered by police, after referring the complaint to the police by the Court, P.Ws. 1 and 2 along with Sub Inspector and Head Constable, went to the house of the accused at Mumbai. There are no details what was the time taken for the said settlement and how the accused is responsible for the amount of Rs. 35,00,000/-, which was given to the father of the complainant and how the said amount of Rs. 35,00,000/- was arrived at Rs. 25,00,000/- in settlement, which are material facts but for mentioning as if a settlement already arrived and the five cheques were issued which include Ex. P.3. That also probablises the defence version apart from the complaint as well as evidence of P.Ws. 1 and 2 also silent regarding proof how the sum of Rs. 35,00,000/- was paid if at all to the accused when and by what source. The defence of the accused that his father was running that entity and after his death it became defunct and he was not even Director by then and not responsible for it and it is under the threat and force through police, P.Ws. 1 and 2 obtained the signatures on the blank cheques and on the so-called undertaking letter in the absence of showing the said amount due by the accused much less of Rs. 35,00,000/- and there from settlement of Rs. 25,00,000/- and how and why mere filing of a cheque is not sufficient despite the evidence of the accused and reply notice Ex. P.9, which is sometime prior to the presentation of the cheque and that too having filed the private complaint including this cheque and the allegations of cheating for non-payment, the survival of the cause of action for its dishonour also doubtful from the complainant version leave that as it is not a matter of dispute or controversy for any finding therein for purpose of the accused even taken it is after filing of the so-called cheating case and so-called Exs. P.2 and P.3 along with other cheques given, those show the complainant entity represented by P.Ws. 1 and 2 through police force went to the accused under the guise of securing his presence before the court in Cr. No. 29 of 2004 pending under the police investigation under threat and force, obtained signatures and misused the same and there is no legally enforceable debt. There is nothing to rebut the same even from cross-examination of D.W. 1 in this regard by producing any material regarding giving of Rs. 35,00,000/- much less to the accused and otherwise liability for the same by the accused and what the law laid down by the Apex Court in Narayan Menon (supra) in discharge of burden on the part of the accused in rebutting the presumptions if at all available against the accused under Section 118 and 139 N.I. Act is need not by coming to the witness box suffice even from showing preponderance of the probabilities of the version by putting to the fact the complainant and witnesses and by confronting with the documents and the accused need not disprove the case of the complainant, he can discharge even by direct or circumstantial evidence is said probable evidence to rebut the defence. In this case not only the suggestions to P.Ws. 1 and 2, but also admissions from the evidence of P.Ws. 1 and 2 in the cross-examination co-relating to Ex. P.2 date and contents therefrom substantiating the defence version that Ex. P.3 cheque and other cheques were obtained under threat and force by the complainant entity officials including P.Ws. 1 and 2 through Police force and thereafter proved that he is not liable for the amount and there is no legally enforceable debt or other liability as rightly concluded by the trial Court's with that finding supported by reasons from the factual matrix with reference to the law settled supra. Hence for this Court while sitting in appeal, there is nothing to interfere. Accordingly, point No. 1 is answered.
17. Point No. 2:
In the result, the Criminal Appeal is dismissed.
Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
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