A. B. Impex, rep. by its Prop v. State of Telangana, represented by Public Prosecutor
2024-04-04
E.V.VENUGOPAL
body2024
DigiLaw.ai
ORDER : E. V. Venugopal, J. The present Criminal Revision Case is filed aggrieved by the judgment dated 06.04.2015 in Criminal Appeal No.137 of 2013 on the file of the learned III Additional Metropolitan Sessions Judge, at Hyderabad (for short, “the appellate Court”) in confirming the judgment dated 08.11.2012 in C.C.No.516 of 2011 (old C.C.No.461 of 2011) on the file of the learned IV Special Magistrate, at Hyderabad (for short, “the trial Court”). 2. Heard Ms. Padmalatha Yadav, learned counsel Amicus Curiae appearing on behalf of petitioners, Mr. Vizarath Ali, learned Assistant Public Prosecutor appearing for respondent No.1-State and Ms. Pallavi, learned Standing Counsel for respondent No.2 appearing on-line. 3. The brief facts of the case are that respondent No.2/complainant is the Indian Overseas Bank constituted under the Banking Companies Act. Petitioner No.2/accused No.2 is Proprietor of petitioner No.1/accused No.1 concern. The complainant filed a suit for recovery of money against accused before the Debt Recovery Tribunal vide O.A.No.51 of 2007. The accused approached the Bank for O.C.S. of the above suit. Considering the request of the accused, the bank agreed for O.C.S. for which accused No.2 issued cheque for Rs.15,00,000/- dated 10.11.2010 who is proprietor of accused No.1. On presentation, the said cheque was bounced with an endorsement, ‘account freezed, do not present again’. Thereafter, the complainant issued a statutory notice as provided under Section 138 B of the Negotiable Instruments Act (for short, “NI Act”). But the notices were returned with an endorsement ‘party left’ and no response. Hence, the present complaint. 4. Learned counsel for the petitioners contended that there was no privity of contract between the petitioners and respondent No.2 and therefore, respondent No.2 cannot issue any notice under the NI Act. She further stated that respondent No.2 filed the complaint without any material and seeks to set aside the impugned judgment. 5. Learned Assistant Public Prosecutor and learned counsel for respondent No.2 submitted that the trial Court as well as the appellate Court, upon careful scrutiny of the material available on record, rightly passed their respective judgments and the interference of this Court is unwarranted. Therefore, learned counsel seek to dismiss the Revision. 6.
5. Learned Assistant Public Prosecutor and learned counsel for respondent No.2 submitted that the trial Court as well as the appellate Court, upon careful scrutiny of the material available on record, rightly passed their respective judgments and the interference of this Court is unwarranted. Therefore, learned counsel seek to dismiss the Revision. 6. The trial Court vide judgment dated 08.11.2012 in C.C.No.516 of 2011 (old C.C.No.461 of 2011), found the accused guilty for the offence under Section 138 of NI Act and sentenced him to pay compensation of Rs.20,00,000/- to the complainant Bank within two months from the date of the judgment, in default, to suffer simple imprisonment for two years. Aggrieved thereby, the petitioners preferred an appeal. 7. The appellate Court vide judgment dated 06.04.2015 in Criminal Appeal No.137 of 2013 dismissed the appeal confirming the judgment passed by the trial Court and directed the petitioners to comply the judgment passed by the trial Court within one month from the date of the judgment. Assailing the same, the present Revision. 8. On behalf of the complainant, the trial Court examined PW1 and marked Exs.P1 to P8. On behalf of the defence none were examined and no document was marked. The oral and documentary evidence shows that accused No.2 admitted his signature on Ex P2. The accused had not denied Exs.P7 and P8. Therefore, it was clear that accused No.1 represented by accused No.2 had issued Ex P2 to the complainant bank towards discharge of legally enforceable debt as per the settlement between the accused and the complainant bank in O.A.No.51 of 2007. The said fact was mentioned in Ex P4 i.e., legal notice. Despite, the accused had neither chosen to give reply nor denied the said fact. So, the complainant proved that accused No.2 had issued Ex P2 cheque on behalf of accused No.1 towards discharge of a legally enforceable debt. Therefore, the trial Court, relying upon the decisions passed by the Hon’ble Supreme Court in K.A.Abbashsa Vs. Saboo Joseph and another, (2010) 6 Supreme Court Cases 230 and R. Vijyan Vs. Baby and another, CDJ 2011 Supreme Court 1094, rendered the judgment dated 08.11.2012 in C.C.No.516 of 2011 (old C.C.No.461 of 2011). 9. The appellate Court observed that the trial Court, without convicting the accused, ordered to pay compensation of Rs.20,00,000/- to the complainant, relying upon the decision passed in S.K. Real Estates and another Vs.
Baby and another, CDJ 2011 Supreme Court 1094, rendered the judgment dated 08.11.2012 in C.C.No.516 of 2011 (old C.C.No.461 of 2011). 9. The appellate Court observed that the trial Court, without convicting the accused, ordered to pay compensation of Rs.20,00,000/- to the complainant, relying upon the decision passed in S.K. Real Estates and another Vs. Ahmed Meeran, 2002 Crl.L.J. 1689 , wherein it was held that proprietary concern and the proprietrix are one and the same person. Therefore, accused No.2 was directed to pay compensation being the Proprietor of accused No.1. Therefore, the appellate Court dismissed the appeal confirming the judgment passed by the trial Court. 10. A perusal of the record shows that this Court vide order dated 01.05.2015 granted interim stay of payment of compensation amount subject to the petitioner depositing Rs.7,50,000/- within two weeks from that day and thereafter furnish third party security for the said sum within a period of four weeks thereafter. 11. On 11.06.2015 the earlier order with regard to the third party security alone was modified and the petitioners were directed to furnish third party security for a sum of Rs.50,000/-. Later, the matter underwent several adjournments. 12. In the present case, the trial Court as well as appellate Court concurrently held that the accused were guilty of the offence under Section.138 of NI Act, which finding, in my considered view, does not call for interference, in exercise of revisional jurisdiction under Section 397 Cr.P.C. There are no grounds much less valid grounds to interfere with the well considered judgments passed by both the Courts. 13. Having regard to the submissions made by both the learned counsel and relying upon the decisions of the Hon’ble Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal 2010 (5) SCC 663 , R. Vijayan Vs. Baby (2012) 1 SCC 260 , S.R. Sunil & Company Vs. D. Srinivasavaradan (2014) 16 SCC 32 , Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi (2015) 9 SCC 622 , Somnath Sarkar Vs. Utpal Basu Mallick 2013 (16) SCC 465 and Gimpex (P) Ltd. Vs. Manoj Goel (2022) 11 SCC 705 this Court is inclined to direct the petitioners to deposit an amount of Rs.7,50,000/- (Rs.15,00,000/- minus Rs.7,50,000/- = Rs.7,50,000/-) to the credit of the learned IV Special Magistrate, at Hyderabad within a period of one year from today. 14.
Utpal Basu Mallick 2013 (16) SCC 465 and Gimpex (P) Ltd. Vs. Manoj Goel (2022) 11 SCC 705 this Court is inclined to direct the petitioners to deposit an amount of Rs.7,50,000/- (Rs.15,00,000/- minus Rs.7,50,000/- = Rs.7,50,000/-) to the credit of the learned IV Special Magistrate, at Hyderabad within a period of one year from today. 14. If the petitioners fails to deposit the aforesaid amount, petitioner No.2 shall suffer simple imprisonment for a period of six months. 15. Except the above modification, in all other aspects, the Criminal Revision Case stands dismissed. Miscellaneous Petitions, pending if any, shall stand closed.