ORDER :

“Whether the impugned orders of conviction and sentence passed against the petitioner by the Courts below for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 suffer any illegality, impropriety or incorrectness”? is the question involved in this case.

2. The petitioner was prosecuted in C.C.No.33201/2000 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short) on the basis of the complaint filed by the respondent company. The said complaint was filed by one S. Basavaraj, Superintendent of the respondent company.

3. The respondent presented the cheque Ex.P2 dated 04.07.2000 said to have drawn by the petitioner for a sum of Rs.11,00,000/-in it’s favour, through Bank of India, Bangalore (Main) branch for realization. The said cheque was returned with endorsement ‘funds insufficient’ as per the return memo Ex.P3. The respondent issued notice Ex.P4 dated 14.07.2000 to the petitioner imputing cheating for not making arrangement for realization of the cheque and calling upon him to pay the cheque amount or else to face the prosecution.

4. The notice issued under registered post acknowledgement due was returned as per postal cover and acknowledgement Ex.P5 with intimation ‘left not known’. Ex.P6 was postal receipt for having sent the notice under certificate of posting. Since the cheque amount was not paid within the specified time, the respondent through its Superintendent S.Basavaraj filed the complaint against the petitioner in PCR No.1210/2000 before XV Additional Chief Metropolitan Magistrate, Bengaluru to prosecute him for the offence punishable under Section 138 of the Act.

5. The trial Court on taking cognizance registered the case in C.C.No.33201/2000 and summoned the petitioner. Since the petitioner declined to plead guilty, the trial Court proceeded with the case. In support of the claim of the respondent company, S.Basavaraj was examined as PW.1.

6. At that stage, the company went into liquidation and the company petitions were filed before this Court. It appears that under such circumstance, said S.Basavaraj did not appear before the trial Court to prosecute the matter. Therefore, the trial Court by order dated 31.01.2005 dismissed the complaint and acquitted the petitioner.

7. According to the respondent, the petitioner was dealer under it for sale of its motors and alternators and for that transaction he used to purchase the said machineries on 45 days credit basis. It was further case of the respondent that in that transaction, the petitioner was due to pay Rs.20,34,000/-and towards discharge of such debt, he issued cheque Ex.P2 without making arrangement for its realization. It was further case of the respondent that though the petitioner evaded the notice sent under registered post, the notice sent under certificate of posting was served on him and despite that he did not make payment.

8. The defence of the petitioner was that since he was not able to furnish bank guarantee for continuing his agency for selling motors or alternators of the respondent company, the respondent took several blank cheques as substitute for bank guarantees. It was his further defence that the company went into liquidation because of the misappropriation committed by its staff, therefore to cover up their own misdeeds, they misused those cheques and got filed the complaint. He denied that the cheque was issued towards discharge of liability.

9. This Court vide order dated 03.08.2004 in Company Petition No.154/2002 accepted the recommendation of the Board of Industrial Financial and Reconstruction for winding up of the company and appointed the official liquidator. This Court in the said order directed the liquidator to take charge of the affairs of the company, its property and effects forthwith.

10. Then the Official liquidator filed Crl.A.No.922/2007 before this Court challenging the order of the Trial Court dated 31.01.2005 dismissing the complaint and acquit