Sun Power Technologies Vs Consul Neowatt Power Solution Pvt. Limited

CONSUL NEOWATT POWER SOLUTION PVT. LIMITED A COMPANY REGISTERED UNDER COMPANIES ACT 1956, OFFICE AT # 4/329 A, OLD MAHABALIPURAM ROAD, CHENNAI - 600041 REP BY ITS REGIONAL MANAGER OF SALES,

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HC-KAR

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MR. ITHIKAR K B

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…RESPONDENT

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(BY SRI. C.P.R KAMARAJ., ADVOCATE)

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THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN CRL.A.NO.1654/2017 ON 22.10.2021 CONFIRMING THE ORDER PASSED BY THE XXVII A.C.M.M., BENGLAURU IN C.C.NO.20042/2016 BY ALLOWING THIS RP.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri. Vijay Kumar Prakash, learned counsel for

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the petitioners and Sri. C.P.R.Kamaraj, learned counsel for the respondent.

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The accused has0 suffered an order of conviction in C.C.No.20042/2016 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, "NI Act,") and imposed a fine of Rs.50,00,000/- as against the cheque amount of Rs.40,00,000/-, of the said amount of Rs.50,00,000/-, a sum of Rs.49,75,000/- was ordered to be paid as

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NC: 2026:KHC:15111 CRL.RP No. 288 of 2022

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HC-KAR

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compensation to the complainant, confirmed in Criminal Appeal No.1654/2017 is the revision petitioner.

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Facts in a nutshell, which are utmost necessary for disposal of the present petition, are as under:

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3.1. A private complaint under Section 200 of Cr.PC came to be filed before the jurisdictional Magistrate alleging the commission of the offence punishable under Section 138 of the NI Act by contending that the complainant company is manufacturing and supplying a full range of power conditioning and power backup products, services and solutions.

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3.2. Accused No.1, being the proprietary concern represented by accused No.2, approached the complainant to market, promote and sell the products of the complainant in Kerala, Tamil Nadu, Karnataka, and Andhra Pradesh as a dealer. The complainant supplied the products to accused No.1 through accused No.2 during the period 2013 to 2015 under several invoices.

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HC-KAR

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3.3 There was a running account that was

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maintained in respect of the accused by the complainant company. When there was a huge due in the account of the accused to the tune of Rs.78,00,000/-, the same was brought to the notice of the accused, which was admitted by them and the complainant demanded the dues from the accused.

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3.4. At that juncture, towards the discharge of the partial liability, accused No.2 issued Cheque No.242222 dated 28.03.2015 and Cheque No.242221 dated 10.04.2015 for a sum of Rs.20,00,000/- each, drawn on Dhanalaxmi Bank Limited, Kaloor Branch. Those cheques on presentation came to be dishonored on the ground "payment stopped by drawer". Statutory notice was issued by the complainant, calling upon the accused to pay the amount covered under the cheques. However, there was no compliance with the callings of notice, and therefore, action was sought.

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HC-KAR

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3.5. The learned trial Magistrate after checking out

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the records, completed the necessary formalities and recorded the plea. First, the accused pleaded not guilty. Therefore, a trial was held.

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3.6. In order to prove the case of the complainant, the authorized representative of the complainant company got examined as P.W.1 and placed on record 12 documents, which were exhibited and marked as Ex.P1 to Ex.P12 comprising an authorization letter, dishonored cheques and bank endorsement, a copy of the legal notice, postal receipt and acknowledgment, board of resolution, and agreement between the complainant and accused.

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3.7. Detailed cross-examination of P.W.1 did not

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yield any positive result so as to rebut the presumption available to the complainant under Section 139 of the NI Act.

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3.8. There is no defence evidence placed on record

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by the accused to substantiate the stop payment

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HC-KAR

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instructions nor to advance the case of the accused that there was a dispute with regard to the products which have been supplied and the payments that have been made by the accused.

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3.9. Left with no alternative, the learned Trial Magistrate raised the presumption available to the complainant under Section 139 of the NI Act, convicted the accused and imposed a fine as referred to supra.

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3.10. Being aggrieved by the same, the accused

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filed an appeal before the District Court in Crl.A.No.1654/2017. Learned Judge of the First Appellate Court, after securing the records, heard arguments of the parties in detail and by considering the judgment dated 22.10.2021 dismissed the appeal filed by the accused.

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3.11. Being further aggrieved by those orders, the accused is before this Court in this revision petition.

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Sri Vijay Kumar Prakash, learned counsel for the petitioners, reiterating the grounds urged in the

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HC-KAR

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revision petition, would contend that both the Courts have not properly appreciated the defence taken by the accused and wrongly convicted the accused, resulting in a miscarriage of justice.

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He would point out that even in the absence of any defence evidence placed on record, the accused can demonstrate that there was no legally recoverable debt involved in Exs.P2 and P3 which has been substantially established by the accused and therefore, sought to allow the revision.

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Alternatively, Sri.Vijay Kumar Prakash, learned counsel for the petitioners, would contend that the imposition of the fine of Rs.50,00,000/- is totally uncalled for having regard to the fact that the accused was a dealer and therefore, sought modification of the sentence.

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Per contra, Sri.C.P.R.Kamaraj, learned counsel for the respondent, would support the impugned judgments.

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HC-KAR

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Having heard the arguments of both sides, this

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Court perused the material on record meticulously.

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On such a perusal of the material on record,

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Ex.P8 shows there existed a dealership agreement between the complainant and the accused. According to the complainant, these materials were supplied under various invoices and the amount due to the complainant by the accused was to the tune of Rs.78,00,000/- as is admitted by the accused.

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It is also the specific contention of the complainant that towards the partial repayment of the amount due to the complainant by the accused, two cheques came to be issued, which on presentation admittedly came to be dishonored with an endorsement "payment stopped by the drawer." There was no compliance with the callings of the legal notice. These aspects of the matter were sufficient enough to raise the presumption available to the complainant under Section 139 of the NI Act as is held in the case of Sri Rangappa

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HC-KAR

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Vs. Mohan reported in (2010) 11 SCC 441 and Sri Rajesh Jain Vs. V. Ajay Singh reported in (2023) 10 SCC 148, respectively.

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In order to rebut the presumption available to the complainant, there is no defence evidence placed on record. However, in a given case when there is an effective cross-examination of the complainant and if the answer elicited in the cross-examination would be sufficient enough to rebut the presumption, the Courts can hold in favour of the accused as is held in the case of

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RohithBhai Jivanlal Patel Vs. State Of Gujarat &

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Another reported in (2019) 18 SCC 106.

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In the case on hand with the above legal principles, in the background, this Court perused evidence of P.W.1. on the cross-examination of P.W.1 did not advance the case of the accused to any extent inasmuch as the liability of the accused was accepted and thereafter, towards the partial discharge, two cheques came to be issued.

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HC-KAR

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Pertinently, there is no dispute that the cheques belong to the accused and the signature found therein is that of the accused. No serious cross-examination has taken place with regard to the agreement between the complainant and the accused marked at Exhibit P8.

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These aspects of the matter, when viewed cumulatively, are the only grounds that the payment stopped by the drawer cannot be considered to hold that there was no offence committed by the accused under Section 138 of the NI Act. Even in case of a stop payment instruction, it is a settled principle of law that the accused is required to make available the requisite funds in his account, which are representing the amounts mentioned in the cheques and for a valid reason, stop payment instructions must have been issued.

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No such details are forthcoming from the accused. As such, when two Courts have rightly convicted the accused, this Court, under the limited provisional jurisdiction, cannot revisit the validity of those aspects of

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HC-KAR

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the matter in annulling the order of conviction. Accordingly, the conviction order is to be upheld.

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Having said so, a sum of Rs.50,00,000/- is imposed as a fine amount as against the cheque amount of Rs.40,00,000/- of which a sum of Rs.25,000/- is ordered to be paid as defraying expenses of the State.

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Since lis is privy to the parties and no state machinery is involved, awarding a sum of Rs.25,000/towards the defraying expenses of the State needs interference in this revision petition to that extent, the revision needs to be allowed.

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Accordingly, the following:

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ORDER

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i) Revision petition allowed in part while maintaining the conviction of the accused for the offence punishable under Section 138 of the NI Act. The order of fine amount ordered by the trial Magistrate confirmed by the First Appellate

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HC-KAR

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Court is reduced from Rs.50,00,000/to

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Rs.49,75,000/-.

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ii) The entire amount of Rs.49,75,000/- is ordered to be paid as compensation to the complainant and a sum of Rs.25,000/- imposed towards the

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defraying expenses of the State is hereby set aside.

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iii) Time is granted for the revision petitioner to pay the balance fine amount till 31.03.2026, failing which, they shall undergo imprisonment as ordered by the trial Magistrate.

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iv) Office is directed to return the Trial Court Records with a copy of this order forthwith for issue of modified conviction warrant.

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Sd/(V SRISHANANDA) JUDGE

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GJM

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List No.: 1 Sl No.: 21

Sun Power Technologies v. Consul Neowatt Power Solution Pvt. Limited

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Sun Power Technologies v. Consul Neowatt Power Solution Pvt. Limited

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