V. BASKAR RAO, S/O LATE SRI. VENKAIH Vs. CAPTAIN J.V.P. RAO, MANAGING DIRECTOR, M/S. UNIC INVESTMENT CASTINGS (P) LTD., PLOT NO. 77, EXPORT PROMOTION INDUSTRIAL PARK, WHITE FIELD, BANGALORE-560066

JUDGEMENT

(1.) THOUGH these appeals are listed in the category of orders, the appeals were heard on merits. As the appellant as well as the respondent - accused are common in all these appeals and they relate to one and the same transaction, these appeals were heard together and are being disposed of by this common judgment. The undisputed facts are, the common appellant / complainant and common respondent - accused along with one Smt. P. Kanakasumdaramma promoted a private limited company in the year 1996 under the name and style of "Unic Investment Private Limited". The complainant was appointed as Executive Director of the said company. The complainant held large number of equity shares of the said company. Ultimately with effect from 31.12.2003, the common complainant resigned from the said company from the post of Executive Director as well as post of Director. The said resignation was accepted by the Board of Directors and in that behalf an indemnity bond came to be executed agreeing to indemnify the appellant from any claims from that day onwards. On that day, the common complainant sold all the equity shares held by him to the respondent - accused and also other Director Smt.P.Kanakasumdwamma. In respect of the said sale of shares, 'shareholders agreement', copy of which is marked as Ex.P.2 and the original as Ex.D.2, came into existence where under, the respondent - accused purchased 27500 equity shares held by the appellant - complainant for a total consideration of Rs.27,57,000/ - while Smt. P. Kanakasumdaramma purchased 5000 equity shares held by the appellant for a total consideration of Rs.25,000/ -. Under the said agreement, the respondent - accused agreed to pay and the appellant agreed to receive a sum of Rs.49,54,530.97 paise in full and fins] consideration of his settlement inclusive of all the amounts due to him from the company whether receivable for the service rendered or as sale consideratior) of the equity shares. To meet the said liability, the accused delivered 9 post dated cheques for various amounts drawn on State Bank of India, Mahadevapura Branch in favour of the appellant, in all, totaling to Rs.49,54,539.97 paise. Out of the 9 cheques, six cheques when presented for encashment, were returned unpaid. Therefore, the appellant - complainant issued notices to the respondent as required by Section 138 of the N.I. Act calling upon him to pay the amounts covered under the cheques so dishonored and since he failed to comply with the demands made therein, presented complaints against the respondent accused in C.C.Nos.27197/2004, 27208/2004, 27206/2004 and 27207/2004 before the XIV Additional CMM, Bangalore.

(2.) THE respondent - accused appeared before the learned Magistrate in all the cases - and pleaded not guilty for the accusation made against him. His defence was that out of 9 cheques issued as stated in Ex.P.4 and Ex.D.2, 3 cheques namely cheque described at Sl.Nos.1, 2 and 3 have been honoured and the complainant has received the amount of a sum of Rs.20 lakhs under those 3 cheques and towards the balance amount covered under the cheques described at SI.Nos.4 to 9 of Ex.P.4/Ex.D.2, he has paid amounts by means of demand drafts, money transfer etc and thereby the entire amount due to the complainant has been repaid and the complainant without returning the cheques in question which had been issued as security, even after receiving the amounts covered thereunder, has misused them by presenting them for encashment. In support of his case, the complainant examined himself as PW.1 in all these cases and led similar evidence. He sought to place reliance on Exs.P.1 to P.11, which are common in all the cases except copy of the notice. On the other hand, the accused examined himself as DW.1 and produced documentary evidence marked as Exs.D.1 to D.20. The learned Magistrate though delivered independent judgments in all the cases but the judgments were identical. The learned Magistrate in the judgments under appeal held that the accused has satisfactorily rebutted the presumption under Section 139 of the N.I. Act, by showing that the cheques in question were issued as security under ExcD.2 and he has paid the amounts covered under all the cheques and therefore the accused was not due any amount to the complainant under the cheques as on the date of its presentation. In this view of the matter, the learned Magistrate acquitted the respondent - accused in all cases. Aggrieved by the said judgment of acquittal, the complainant has presented these appeals.

(3.) AS could be seen from the records under Ex.P.4, which is copy Ex.D.2, the respondent - accused towards the consideration of the equity shares purchased from the complainant and also all other amounts due to the complainant including amounts towards the services rendered by him to the company, agreed to pay Rs,49,54,539.97 paise. For the said amount as mentioned in Ex.P.4, the respondent - accused issued in all 9 cheques for various amounts. Out of the 9 cheques, the appellant - complainant has admitted that he has received the amounts covered under the two cheques at Sl.Nos.1 and 2 amounting to Rs.15 Lakhs. Though he states that the third cheque was also honoured, according to him, he has paid that amount to respondent - accused. However, there is no acceptable evidence produced by the complainant to show that he had paid that amount of Rs.5 Lakhs under the third cheque honoured, to the accused. The six cheques mentioned at Sl.Nos.4 to 9 in Ex_P.4 remained. PW.1 in his cross -examination has categorically admitted that he has received a sum of Rs.14 Lakhs by means of Demand Draft, a sum of Rs.3,61,000/ - through TT and a sum of Rs.9,19,000/ - by means of money transfer from the accused. He has also admitted that he has received a sum of Rs.2 Lakhs by cash but he has not issued any receipt for the same. The total amount as admitted by the accused works out to Rs.28,80,000/ -. A sum of Rs.20 lakhs has been received through the cheques mentioned at a Sl.Nos.1 to 3 at Ex.P.4. Thus, the complainant has received total amount of Rs.48,80,000/ -. It is Under these circumstances, the learned Magistrate has come to the conclusion that the respondent - accused has satisfactorily rebutted the presumption under Section 139 of the Act and that he has satisfactorily established that he had paid the entire amount covered under 9 cheques mentioned in Ex.P.4. The learned Magistrate has also noticing the attempt made by the complainant in his evidence that a sum of Rs.27 lakhs and odd, was towards his consultation charges, has rejected the said contention of the complainant on the ground that there is absolutely no agreement for payment of any consultation charges. A13 the payments admitted by the complainant in his evidence are all shown to be towards the amount mentioned in Ex.P.4 and since the entire amount covered under the cheques, has been paid to the complainant and since the complainant has admittedly received the same, in my opinion, the learned Magistrate is justified in holding that the accused was not due any amount to the complainant under the cheques in question. The finding recorded by the learned Magistrate 13 purely based on the admission made by the complainant in the cross -examination as such the findings are sound and reasonable. No error has been committed by the learned Magistrate in acquitting the accused. The judgment under appeal does not suffer from any perversity or illegality. The appellant / claimant even after having received entire amount due to him as per Ex.P.4, had made attempts to unlawfully enrich himself by presenting six cheques. Therefore, in my considered opinion, the court below is justified in acquitting the accused and dismissing the complaints. Therefore, I find no ground to interfere with the judgment of the court below. In this view of the matter, there are merits in these appeals.