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2012 Supreme(Kar) 624
High Court of Karnataka
JAWAD RAHIM, J.
M/s. Cheminova India Limited, Mumbai, rep. by its Area Manager
Versus
M/s. Jajee Pesticides, Gulbarga & Others
Criminal Appeal No. 376 of 2007
Decided on: 25-02-2012
For the Appellant:Prahlad for M/s. Rao Prasad & Co., Advocates.
For the Respondents:Pramod N. Kathavi, Advocate.
Headnote:INDIAN EVIDENCE ACT, 1872 - Section 167: [Jawad Rahim, J] Improper admission or rejection of evidence - Held, Even if there be any unjust admission or rejection of evidence, re-trial is impermissible.
NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138: [Jawad Rahim, J] Offence under - Question whether the complainant could be permitted to change its representative and substitute another representative during the course of trial ? - Held, When the complainant is a juristic person, it will be a de jure complainant, and as it is incapable of physical presence in Court, it has to be represented by a living person who will be de facto complainant. It will be the right of the complainant to choose its representative. If the incorporeal body was represented by a particular individual at the time of presenting the complaint, there is no compulsion that the entire proceedings should be concluded only by him. He could be substituted in the discretions of the Company by another person subject to contingencies in the administration of the Company. On facts, held, In view of PW1 walking out of the Company, complainant was within its right in seeking substitution to be represented by PW 2.
NEGOTIABLE INSTRUMENTS ACT, 1881 - Sections 145 (1) & (2) & 145: [Jawad Rahim, J] Evidence of complainant - Held, When the complainant has given evidence on affidavit, if the accused applies to the court, then the Court has no discretion but to summon the deponent in the affidavit to appear for examination as to the facts contained in the affidavit. Despite the Court’s direction, if the person giving evidence in examination-in-chief on affidavit fails to appear and tender himself to be examined, then the deposition in the affidavit will not translate into legal evidence. This requirement is in line with the provisions of the Evidence Act.
1. Complainant’s appeal against acquittal of the respondents for offences punishable under Section 138 of the N.I. Act.
2. Heard learned counsel Sri. S. Prahlad appearing for the appellant and Sri. Pramod N Kathavi, learned counsel for the respondents/accused. Perused the record in supplementation thereto.
3. The contextual facts needing reference are:
The appellant/company incorporated under the Companies Act initiated prosecution against respondent No.1, a partnership concern for offences punishable under Section 138 of the N.I. Act on material allegation that it had appointed the accused/partnership firm as its distributor to deal with the agricultural products manufactured by it. The first respondent was represented by its partners respondents 2 and 3. During the course of said business transaction, the complainant accepted the order placed by the first respondent/accused and supplied its products which was documented in the Invoice. On delivery of the material indented by the accused, the transaction was complete. The accused/firm was liable to pay the value of the products so supplied and delivered. The accused acknowledging its liability to pay Rs.1,50,000/- issued the impugned cheque which on presentation to the Bank was dishonoured necessitating issuance of statutory notice raising a demand for paying the amount covered under the cheque and also Interest at 24% p.a.
4. The notice was duly served on the accused but they failed to comply with the demands made therein resulting in filing of the complaint before the jurisdictional Magistrate who took cognizance of the offences alleged and summoned the respondents/accused.
5. The accused denied the substance of allegation formulated against them for offences under Section 138 of the N.I. Act.
6. In the trial that ensued, the complainant represented itself through its attorney and Manager Mr. C.P. Suresh Kumar. Thus, Mr. C.P. Suresh Kumar filed sworn statement in the form of an affidavit in examinationin-chief before the Trial Court on 17.02.2006 and then appeared in person on 24.02.2006 for further examinationin-chief, and produced documents marked as Ex.P1 and P12. The case was then adjourned to 16.03.2006 for cross examination by the respondents/accused on which day, as cross examination was not done the case was posted to 23.03.2006. On that day and subsequent dates to which case was posted PW1 remained absent, consequent to which his cross examination could not be done by and on behalf of the accused. The position continued. However, the Trial Court showed indulgence and adjourned the case for appearance of PW1 till 24.07.2006 on which date, noticing continuous absence of PW1 (Sri. C.K. Suresh Kumar) and as he had not tendered himself for cross-examination and no other witness was present, the complainant’s evidence was closed.
7. In the circumstances, the learned Trial Judge by Order dated 24.7.2006 dispensed with examination of the accused under Section 313 of Cr.P.C and posted the case for argument to 28.07.2006 area then to 31.07.2006, on which date, accepting the request of both sides, the case was adjourned to 05.08.2006 and on which date, an application under Section 311 of Cr.P.C. was filed by and on behalf of the complainant to recall PW1 which was allowed on cost of Rs.1,200/- and again, the case was posted for cross examination of PW1 (C.K. Suresh Kumar) to 19.08.2006. Again PW1 did not tender himself for Cross-examination. Instead of tendering him for the cross-examination the complainant filed an application for substitution of its representative Sri. C.P. Suresh Kumar by one Sri. B.K. Swamy, the present power of attorney holder to represent the complainant company.
8. Such request of the complainant was not opposed by the accused and thus, B.K. Swamy was permitted to represent the complainant company substituting him in place of C.D. Suresh. Thereafter, Sri. B.K. Swamy appeared only on 18.09.2006 on which date, he was examined himself as PW2 and during
