Dismissed

Mr Shyam Sundar v. Apple Nutra Pharmaceuticals

Karnataka HC29 Nov 2021CRL.A/492/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal appeal lodged against an acquittal of one accused and convictions of others under the NI Act. The appeal regarding the acquitted person was dismissed due to lack of case-sustaining facts, while the appeal against convicted firms/partners was dismissed as not maintainable as the convicted parties were original respondents.

What did the court decide?

The criminal appeal was dismissed in its entirety against all parties.

Mr Shyam Sundar Vs Apple Nutra Pharmaceuticals — Company and Corporate | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO. 492 OF 2021

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BETWEEN:

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MR. SHYAM SUNDAR, S/O LATE KRISHNA MURTHY, AGED ABOUT 50 YEARS, MARKETING EXECUTIVE, C/O MYLARLINGESHWARA, 8TH CROSS, 3RD STAGE, VINOBHA NAGAR, SHIVAMOGGA-577201. … APPELLANT (BY SMT. ANITHA.H.R., ADVOCATE)

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AND:

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APPLE NUTRA PHARMACEUTICALS, JAYA APARTMNET, FLAT NO.A-2, 2ND FLOOR, 6TH CROSS, MALLESHWARAM, BEGNALURU-560003. REPRESENTED BY PARTNERS.

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MR. SRIDHAR MURTHY, MANAGING PARTNER, AGED ABOUT 61 YEARS, JAYA APARTMENT, FLAT NO.A-2, 2ND FLOOR, 6TH CROSS, MALLESHWARAM, BENGALURU-560003.

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SMT SUMATHI SRIDHAR, PARTNER, AGED ABOUT 48 YEARS, JAYA APARTMENT, FLAT NO.A-2, 2ND FLOOR, 6TH CROSS, MALLESHWARAM, BENGALURU-560003.

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NOW RESPONDENT NO.2 AND 3 ARE R/A NO.4, 1^ST 'A' MAIN ROAD, NEAR BALAJI TRADERS, OPP. D.S. MAX SELDON APARTMENT, VIGNESHWARA BADAVANE, SHETTYHALLI, JALAHALLY WEST, WARD NO.12. … RESPONDENTS

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THIS CRL.A. FILED U/S.378(4) CR.P.C BY THE ADVOCATE FOR THE APPELLANT/S PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT DATED 15.02.2020 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA IN C.C.NO.499/2010 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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THIS APPEAL IS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING;

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JUDGMENT

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This appeal is preferred by the complainant against the order of acquittal passed by the Court of III Additional Civil Judge and JMFC., Shivamogga in

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C.C.No. 499/2010, acquitting accused No.3 for the

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offence punishable under Section 138 of N.I. Act.

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Heard the learned counsel for the appellant and

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perused the material on record.

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The case of the complainant is that, accused No.1 is a partnership firm, accused No.2 is the managing partner, accused No.3 is the active partner of accused No.1. Accused Nos.2 and 3 are known to the complainant for the past 13 years and both the complainant and accused No.2 were working in Micro Lab's Ltd., at Mysore. A friend of complainant by name Sathyanarayana and accused No.2 were collegues in Micro Lab's Ltd., at Mysore and complainant's brother Sathish and one Prasad Gowda were working under accused No.2 in Micro Lab's Ltd., at Mysore and accused No.3, wife of accused No.2 was introduced to the complainant.

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In the year 2001, accused Nos.2 and 3 discussed with the complainant to establish a Pharma in the name and style as Apple Nutra and Pharmaceuticals for production of Pharma Products. They sought co-operation from the complainant. The complainant and his other collegues resigned from the Micro Lab's Ltd., at Mysore. Thereafter, complainant started working as a commission agent for Shivamogga and Mandya District etc. The accused were making payment of commission to complainant and his collegues and subsequently stopped paying commission. The outstanding commission payable to the complainant by the accused up to December 2008 was Rs.2,33,476/. The outstanding commission amount payable to Mr.Sathyanarayana up to July 2007 was Rs.50,334/-. The outstanding commission amount payable to Mr. Sathish. M.K up to January 2008 was Rs.6,21,196/- and the outstanding commission amount

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payable to one Mr. Prasad Gowda up to January 2008 was Rs.1,02,579/-. Subsequently, the accused persons agreed to pay a sum of Rs.10,07,585/- to them and they issued a cheque dated 15.05.2008 bearing No.668331 drawn on ING Visya Bank, Malleshwaram Branch, Bengaluru towards the outstanding commission amount payable to the complainant and his three collegues. When the said cheque was presented at State Bank of India, Vinobanagar Branch, Shivamogga, the same was dis-honoured with an endorsement "Funds Insufficient". The complainant got issued a legal notice dated 21.06.2008 to the accused persons, through RPAD calling upon them to repay the amount covered under the aforesaid cheque. Inspite of service of notice, instead of repaying the amount, accused issued untenable reply and failed to make payment within the statutory period. Therefore, committed offence under Section 138 of NI Act.

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The trial Court considering the oral and documentary evidence on record by its judgment dated 15.02.2020 in C.C. No.499/2010 was pleased to convict accused Nos.1 and 2 and acquitted accused No.3.

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It is the contention of the learned counsel for

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the appellant that both accused Nos.2 and 3, the husband and wife are partners of accused No.1 and both are jointly and severally liable to pay the outstanding commission to appellant and his collegues. Both being the active partners in the firm are liable for their acts and therefore the trial Court was not proper in acquitting accused No.3. She contends that without assigning any valid reasons and overlooking the evidence adduced by the complainant, trial Court has erroneously acquitted accused No.3.

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It is relevant to mention that the trial Court convicted accused Nos.1 and 2 under Section 138 of NI

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Act and acquitted accused No.3. The trial Court has sentenced accused Nos.1 and 2 to pay fine of Rs.15,00,000/- jointly and severally and in default of payment, ordered accused No.2 to undergo simple imprisonment for a period of one year.

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The complainant has impleaded accused Nos.1 and 2 as respondents in this appeal. Arraigning accused Nos.1 and 2 in the present appeal is misconceived as they are already convicted by the trial Court. Hence, the present appeal against respondent Nos.1 and 2/accused No.1 and 2 is not maintainable.

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Insofar as respondent No.3 / accused No.3 is concerned, it is the contention of the complainant before the trial Court that accused No.3 was also responsible for the conduct of business of accused No.1 firm and all the accused are jointly liable to pay the amount covered under Ex.P.1-Cheque. The trial Court

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has observed that there must be specific averments to show as to how and in what manner accused No.3 was responsible in the conduct of business or that she was in-charge of the day to day affairs of accused No.1 firm. It is observed that nothing has been suggested by complainant/P.W.1 that even accused No.3 was incharge and was responsible for the day to day affairs of accused No.1 firm, except mentioning that accused No.3 was taking active part in day to day affairs of the firm.

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The trial Court has also taken into consideration that it was only accused No.2 who came to Shivamogga and issued the cheque in favour of the complainant and accused No.3 is not a signatory to Ex.P.1-Cheque. The trial Court has concluded by observing that there was no material before the Court to show that even accused No.3 was responsible for the day to day affairs of accused No.1 firm and therefore it cannot be held that she is responsible to pay the

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amount covered under Ex.P.1-Cheque. Accused No.3 has been acquitted as there was no role played by her, either in issuing the cheque or regarding dishonor of cheque. The trial Court has given valid reasons for acquitting accused No.3/respondent No.3. As such, there is no merit in the present appeal. Hence, I pass the following;

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ORDER

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Appeal is dismissed as not maintainable insofar as

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accused Nos. 1 and 2/respondent Nos.1 and 2.

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Appeal is dismissed against accused

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No.3/respondent No.3.

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I.A No.1/2021 is dismissed.

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Sd/JUDGE

Mr Shyam Sundar v. Apple Nutra Pharmaceuticals

Case brief

What is this about?

What did the court decide?

Mr Shyam Sundar v. Apple Nutra Pharmaceuticals

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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