M/S Prasad Infrastructural Pvt. Ltd., Vs M/S Vijay Auto Sales and Services (P) Ltd.

M/S. PRASAD INFRASTRUCTURAL PVT. LTD., A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.16/16, BINNY CRESCENT, BENSON TOWN, BANGALORE - 560 046

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REPRESENTED BY ITS DIRECTOR AND AUTHORISED SIGNATORY SRI ROHAN RATHI

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…APPELLANT

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(BY SRI. SUBRAMANYA., ADVOCATE)

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AND:

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M/S VIJAY AUTO SALES AND SERVICES (P) LTD., HAVING ITS REGISTERED OFFICE AT NO. 677, BILEKAHALLI B.G.ROAD, BANGALORE - 560 076

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ALSO: NO.21/1, BASAPURA VILLGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, BANGALORE DISTRICT-560077.

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SRI V. SRIDHAR S/O SRI R VENKATARAMAN,

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AGED ABOUT 50 YEARS,

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MANAGING DIRECTOR, M/S VIJAY AUTO SALES AND SERVICES (P)LTD., HAVING ITS REGISTERED OFFICE AT NO. 677, BILEKAHALLI, B.G.ROAD, BANGALORE - 560 076

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ALSO AT NO.21/1, BASAPURA VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, BANGALORE DISTRICT.

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…RESPONDENTS

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(BY SRI. N. VAGEESH., ADVOCATE FOR R1 AND R2.)

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THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 28.12.2015 PASSED BY THE XXV A.C.M.M., BANGALORE IN C.C.NO.28618/2009 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.10.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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CAV JUDGMENT

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Complainant has preferred this appeal against the Judgment of acquittal dated 28^th December 2015, passed in CC No.28618 of 2009 by the XXV Additional Chief Metropolitan Magistrate at Bangalore.

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For the sake of convenience, parties herein are referred to as per their status and rank before the trial Court.

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Brief facts leading to this appeal are that accused No.1 is the tenant of the complainant in respect of property bearing No.21/12, Basapura Village, Begur Hobli, Bangalore, South Taluk of which accused No.2 is the Managing Director. Accused have issued three cheques bearing Nos.119161 and 110999 dated 15^th December, 2008 and cheque No.122868 dated 06^th January, 2009 for amount of Rs.4,48,500/- each, all drawn on Bank of India, J.P. Nagar Branch, Bangalore towards payment of rent for period October-December 2008. Apart from the aforesaid cheques, the accused has also issued Cheque bearing No.122869 dated 06^th January, 2009 for a sum of Rs.3,39,900/- drawn on Bank of India, J.P. Nagar Branch, Bangalore towards arrears of service tax payable by the accused. On presentation of cheques for collection, same were returned on 05^th March, 2009 with endorsement "funds insufficient". Hence the complainant got issued legal notice dated 28^th March 2009. In spite of receipt of notice on 30^th March 2009, the accused failed to make payment. Hence, the complainant filed complaint under Section 138 of Negotiable Instruments Act.

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4. After taking cognizance, case was registered in CC No.28618 of 2009 and summons were issued. In response to summons, accused appeared before the Court and was enlarged on bail. Substance of plea was recorded. Accused pleaded not guilty and claim to be tried.

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5. To prove the guilt of the accused, the Director of the Complainant-Company was examined as PW1. But the evidence of PW1 was not concluded. Thereafter the complainant filed application for substitution of authorised signatory and for leading evidence on behalf of the Company. The trial Court passed an order on 15^th April, 2014 permitting the complainant to lead further evidence. Accordingly, PW2 was examined and 20 documents were marked as Exhibits P1 to P20. On closure of prosecution side evidence, statement of accused under Section 313 of Code of Criminal Procedure was recorded. Accused denied the evidence of PWs1 and 2, and further he has submitted that he has deposited Rs.50,00,000/with the complainant-Company. He has informed Mr. Rathi, the Director of the Company to adjust the arrears of rent and refund the balance amount to the complainant while vacating premises. He vacated the premises in the year 2009 and his balance amount is not returned in spite of his demand for the

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same. He do not know anything to the complainant. But he has not led any defence evidence. Having heard the arguments on both sides, the trial Court acquitted the accused. Being aggrieved by the judgment of acquittal, the complainant has preferred this appeal.

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6. Sri Subrahmanya, learned Counsel appearing for the appellant, would submit that the trial Court has acquitted the accused on two grounds. One for want of service of notice. In this regard, the learned Counsel would submit that the complainant has not complied with the mandatory provisions of section 138(c) of Negotiable Instruments Act, 1881. He would submit that he has sent the notice through courier service. In this regard, he has produced Exhibits P10 and P11, which reveals the address of the accused-Company. The acknowledgement of courier service also reveals the same. Barcode is mentioned in Exhibits P10 and P11, and if the barcode is open, one can see the address of the accused. The same is not considered by the trial Court. The address shown in Exhibit P9-Legal Notice and the address shown in Exhibit P1Lease Agreement are one and the same. This evidence clearly goes to show that notice is duly served to the accusedCompany under due acknowledgement. Further, he would

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submit that even if it is presumed that notice is not duly served, then also the accused cannot escape from its liability in view of the decision of Supreme Court, in the case of C.C. ALAVI HAJI v. PALAPETTY MUHAMMED AND ANOTHER reported in (2007)6 SCC 555 in which the Apex Court has clearly observed in paragraphs 7 and 17, that even if the notice is not duly served, then also it is the duty of the accused to deposit the amount and his appearance before the Court.

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7. The second ground is with regard to the liability of the accused. In this regard, learned Counsel would submit that the accused has taken the ground that he has paid ₹50,00,000/towards advance amount and the same is not returned to him. In this regard, the accused has not taken any legal step against the Company till date and even the accused has not stepped into witness box to adduce his defence evidence. In this regard, the accused has not explained why he has issued cheque in favour of the complainant-Company. The accused has failed to rebut the statutory presumption under Section 139 of Negotiable Instruments Act. Further, even in the statement of the accused under Section 313 of Code of Criminal Procedure, the accused has failed to state why he has issued

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disputed cheques to the complainant-Company. On all these grounds, it is sought to allow the appeal.

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8. As against this Sri N. Vageesh, learned Counsel appearing for the respondent/accused, vehemently submitted that the complainant has not explained why he has not sent notice through Registered Post Acknowledgement Due or under Certificate of Posting to the correct address. Exhibits P10 to 14, do not reveal as to the full address of the accused. The courier receipts do not bear the correct address of the accused company. The acknowledgement does not bear the seal and signature of the accused. Invoking the provisions under Section 73 of Indian Evidence Act, the trial Court has compared the signatures on the receipts with the signatures in the alleged acknowledgement and has come to the conclusion that the same do not tally with each other. As per Exhibit P20, The accused has paid a sum of Rs.50,00,000/- to the complainant and the same is admitted by PW1. But they have not returned the same to the accused. PW1 has admitted in his evidence that he has not received payment of Rs.50,00,000/- and the same is also stated by the accused while recording the statement under Section 313 of Code of Criminal Procedure. It is also submitted that the evidence of PW1 was discarded on

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the ground that he left the Company. Subsequently, without production of any resolution by the Complainant-Company, PW2 is examined and his evidence cannot be considered. Accordingly, he sought for dismissal of the appeal.

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9. In reply, it is submitted by the learned Counsel for the complainant that PW2 is one of the Directors of the Company and the Director of Company can lead evidence without any resolution and therefore the resolution is not produced.

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10. H aving heard the arguments on both sides, the

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following points would arise for my consideration:

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1. Whether the complainant has made out ground to interfere with the judgment of acquittal passed by the trial Court?

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What order?

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Regarding Point No.1:

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Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal.

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In the case of MOTIRAM PADU JOSHI & OTHERS v.

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STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus:

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“23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of

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the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. ”

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In the case of MUNISHAMAPPA & OTHERS v. STATE

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OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:

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“ 16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence

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by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. … ”

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In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:

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“4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the misappreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the

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entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.… ”

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In the case of STATE OF RAJASTHAN v. KISTOORA

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RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:

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“8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.”

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In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus:

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“12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.”

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In the case on hand, the trial Court has acquitted the accused on the ground that the complainant has not complied with the mandatory provisions of Section 138(c) of the Negotiable Instruments Act and the complainant has failed to prove the legally recoverable debt as defined under explanation to Section 138 of Negotiable Instruments Act. With regard to non-compliance of provisions, Section 138(c) of Negotiable Instruments Act is concerned, the complainant has stated in his complaint that the complainant has sent legal notice to the accused on 28^th March, 2009 calling upon the accused to pay

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sum of Rs.16,85,400/- along with interest at the rate of 18% per annum, within 15 days from the date of receipt of the said notice. It is also stated that the accused has received the Notice on 30^th March, 2009. To substantiate the same, the complainant has produced Exhibits P10 to P17, courier receipts dated 28^th March, 2009 in which the address is shown as "Vijaya Auto Sales". The full address of the accused-Company is not shown in the courier receipt nor the Pin Code is mentioned. It is a case of the complainant that they have issued notice on 28^th March 2009, whereas the copy of NoticeExhibit P9 reveals that the date of notice is 28^th March 2009. The complainant has not explained anything as to the difference of date in Exhibit P9-Legal notice and in Courier receiptsExhibits P10 & P11. The learned Counsel for the complainant would submit that in Exhibits P10 & P11 the barcode is mentioned and if the Barcode is opened, one can see the address in full. In this regard, the complainant has not pleaded or adduced any evidence before the trial Court that if the Barcode is opened, one can see the address of the accused. For the first time, the complainant has raised this point before this Court. Without any evidence, as also, in the absence of

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material evidences, the arguments advanced on behalf of the complainant cannot be accepted at this stage.

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With regard to the service of legal notice through courier service is concerned, the complainant has not placed any acceptable evidence before the Court to prove that the accused-Company received this notice. The trial Court has properly appreciated evidence on record in accordance with law and facts in this regard. Even on re-appreciation of evidence on record, I do not find any error/legality as to the finding regarding service of notice to the accused. The decision relied upon by the learn Counsel for the complainant in the case of C.C. AVALJI HAJI (supra) is not applicable to the case on hand, as the accused has denied his legal liability to pay the cheque amount.

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As regards the legally recoverable debt, the complainant has stated in his complaint that all the cheques in dispute were issued by the accused towards the payment of rent for the period October-December 2008. To prove the same, the complainant has produced Cheques Exhibits P1 to P4. Exhibits P1 and P2 are Cheques dated 15^th December 2008 for Rs.4,48,500/- each; Exhibits P3 and P4 are the Cheques dated

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06^th January, 2009 for Rs.4,98,500/- and for Rs.3,39,800/respectively. Exhibit P2 is the Lease Agreement between the complainant and the accused. The same reveals that monthly rent is Rs.5,00,000/-. When the monthly rent is Rs.5,00,000/lakh, why the accused has issued three cheques for more than Rs.16,00,000/-, has not been explained by the accused. The accused has stated in his statement under Section 313 of Code of Criminal Procedure that he has deposited Rs.50,00,000/with the complainant and he informed Mr. Rathi, the Director to adjust the arrears of rent and to pay the balance amount to him while vacating the premises. He vacated the premises in the month of February 2009. His balance amount is not returned in spite of he demanded for and that he do not owe anything to the complainant. During the course of cross-examination of PW2, he has not deposed anything about the return of deposit amount of Rs.50,00,000/- to the accused. But during the course of cross examination, he has clearly admitted that there is an agreement that Rs.50,00,000/- advance amount has to be returned to the complainant. Further, he has also admitted that they have not returned the amount of Rs.50,00,000/- to the accused at the time of vacating the premises. Further, he has admitted that he has not deducted the sum of Rs.16-17 lakh in

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the advance amount of Rs.50,00,000/-. However, has stated in the cross-examination that advance amount is adjusted by the new tenant, i.e. SKS Automobiles and that there is a lease agreement between themselves and SKS Automobiles in this regard. But the same is not produced by PW2 and for the first time it is stated as to this fact before this Court. The trial Court has properly appreciated the evidence on record and passed the impugned Judgment of acquittal. I do not find any error/illegality in the impugned Judgment. Hence, considering the facts and circumstances of the case and also keeping in mind the aforesaid decisions, I am of opinion that the complainant has not made out any ground to interfere with the impugned Judgment of acquittal. Accordingly, I answer the point that arose for consideration, in the negative.

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Regarding Point No.2:

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