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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
M/s. National Agricultural Co-Op. Marketing Federation of India Ltd. – Appellant
Versus
M/s. Disha Impex Pvt. Ltd. – Respondent
Criminal Appeal Nos. 1135, 1145, 1146 of 2011
Decided On : 06-01-2021
Criminal Procedure Code,1973 - Section 313 - Negotiable Instruments Act - Sections 139 and 138 - Evidence Act - Sections 17 to 21 and 145 –Dishonoured of cheque - Notice - Company for procurement of Iron - Order of Acquittal - Challenged - Complainant is a Central Government undertaking and had entered into a Memorandum of Understanding with accused No. 2 to finance accused No. 1 Company for procurement of Iron Ore to tune Crores and complainant would fund estimated cost subject to actual and accused No. 2 would pay remaining 20% simultaneously proportionate to draw down - connection with this transaction pertaining to MOU accused had issued a cheque for Rs. 1 Crore
Finding of the Court : Learned counsel would submit tat no reply was given - When such being case, Trial Judge ought to have drawn the presumption - Contention of complainant’s counsel cannot be accepted in view of answers elicited from mouth of PW-1 - Complainant has not approached Court with clean hands - He pleaded in complaint that those cheques are issued towards the invoices raised by the accused, but no such invoices are in existence and those bills of invoices are also not furnished very contention Trial Judge has committed an error in acquitting the accused also cannot be accepted - Complainant by making effective cross-examination and even in the absence of any evidence adduced by accused - Case of complainant has been rebutted through effective cross-examination – Court do not find any merit in the appeals to reverse the findings of the Trial Court
Result: Appeals are dismissed
JUDGMENT :
H.P. SANDESH, J.
1. These appeals are filed challenging the judgment of acquittal dated 20.08.2011 passed in C.C. Nos. 14692/2007, 17140/2007 and 14691/2007 respectively, on the file of the XX Additional Chief Metropolitan Magistrate, Bengaluru.
2. All the three appeals are taken up together since the complainant and the accused are common in C.C. Nos. 14692/2007 and 14691/2007. The very same accused is accused No. 2 in C.C. No. 17140/2007 and accused No. 1 is Aditya Minerals represented by the same accused. Though the independent witnesses of PW-1 are examined, all the witnesses are one and the same and documents in C.C. Nos. 14692/2007 and 14691/2007 are similar both in respect of the complainant and the accused. The documents in C.C. No. 17140/2007 are also similar, but there are slight changes. The judgments are also independently delivered by the Trial Court by the very same Presiding Officer, hence all these appeals are taken up together for common disposal.
3. The parties are referred to as per their original rankings before the Trial Court as complainant and accused in order to avoid the confusion and for the convenience of the Court.
4. The factual matrix of the case is that the complainant is a Central Government undertaking and had entered into a Memorandum of Understanding (‘MOU’ for short) on 10.03.2004 with accused No. 2 to finance accused No. 1 Company for procurement of Iron Ore to the tune of Rs. 11.86 Crores and the complainant would fund 80% of the estimated cost subject to actual and accused No. 2 would pay the remaining 20% simultaneously proportionate to the draw down.
5. In connection with this transaction pertaining to the MOU dated 10.03.2004, the accused had issued a cheque for Rs. 1 Crore dated 28.08.2006 in C.C. No. 14691/2007, cheque dated 28.08.2006 for Rs. 1.5 Crores in C.C. No. 14692/2007 and cheque for Rs. 1 Crore dated 28.11.2006 in C.C. No. 17140/2007. When these cheques were presented, they were dishonoured with an endorsement “funds insufficient.” Hence legal notice was issued on 21.02.2007 in respect of C.C. Nos. 14691/2007 and 14692/2007 and legal notice dated 11.01.2007 was issued in respect of C.C. No. 17140/2007. All these notices were served against the accused. Inspite of service of notice, the accused did not comply the demand and hence the complainant was forced to file separate independent complaints against the accused persons.
6. The complainant in order to substantiate the case in C.C. Nos. 14691/2007, 14692/2007, examined one witness Sri. R. Sundararajan as PW-1 and got marked the documents at Exs.P.1 to 8. The accused though not led any defence evidence, confronted the documents and got marked the documents at Exs.D.1 to 9. In C.C. No. 17140/2007, the complainant got examined one witness Sri. R. Sundararajan as PW-1 and got marked the documents at Exs.P.1 to 13. The accused though not led any defence evidence, confronted the documents and got marked the documents at Exs.D.1 to 10. The Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. and the accused did not choose to lead any evidence. The Trial Court after considering both oral and documentary evidence placed on record, acquitted the accused and hence the present appeals are filed before this Court.
7. The complainant/appellant in Crl. Appeal Nos. 1145/2011, 1135/2011 and 1146/2011 has urged the common grounds in the appeal contending that the Trial Judge without properly appreciating the evidence of PW-1, committed an error in acquitting the accused. The Trial Judge also failed to appreciate the law laid down in the judgment reported in 1996 (1) Crimes 454 and 2010 (1) KCCR 176, since the accused utterly failed to rebut the presumptions available in favour of the complainant.
8. The Trial Judge also erred in not considering that accused Nos. 1 and 2 have not entered into the witness box and are not entitled to take advantage of the case of the complainant without placing any evidence by enteri
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