MENON VENTURES Vs. BIRLA 3M LTD

JUDGEMENT

(1.) THIS petition is filed under Section 401 of the Criminal Procedure code, 1973 against the judgment and order of dismissal dated 4-4-2001 passed by the 13th Additional Sessions Judge, Mayo Hall Unit, bangalore, in Cri. A. No. 15016 of 2000 and to set aside the judgment and order of conviction dated 4-4-2001 passed by the 14th Additional cmm, Bangalore, in C. C. No. 25059 of 1997 mainly on the ground that impugned order passed by both the Trial Court as well as the learned sessions Judge is illegal and contrary to law and the evidence on record. The Courts below have committed a serious error in law in ordering and convicting the petitioner-accused for an offence punishable under section 138 of the Negotiable Instruments Act, 1881,as to whether the cheque admittedly issued as a collateral security would amount to a debt within the ambit of Section 138 of the Act without considering the averments of the complaint. As admitted by the complainant, the petitioner-accused issued cheque bearing No. 0011559, dated 22-7-1996 for Rs. 20 lakhs drawn on Vijaya Bank, Mayo Hall Branch, Bangalore, as a collateral security. Therefore, the cheque issued by the petitioner-accused is not a legally recoverable debt which is issued as a collateral security and that in various transaction there is a suit pending against the petitioner filed by the respondent. Therefore, question of committing an offence under the provision of Section 138 of the negotiable Instruments Act is not at all maintainable. The respondent-complainant which is a company has not represented properly inasmuch as Sri N. S. Swaminathan, who is stated to be the authorised Officer according to the cause title, has not signed the complaint, therefore, the complaint filed against the petitioner by the complainant is illegal. A Director has no power to act on behalf of the company, therefore, the complaint filed against him is not at all maintainable since no authorisation letter has been produced by the complainant to prove that he has been duly authorised to act on behalf of the company. Therefore, the judgment and the impugned order of conviction and sentence passed by the Courts below are liable to be set aside.

(2.) BRIEF facts leading to this case are that the respondent herein M/s. Birla 3m Limited filed a complaint under Section 138 of the N. I. Act, on the allegation that the petitioner-accused has issued a cheque for Rs. 20 lakhs and in fact the respondent deposited the said cheque but the same was returned with an endorsement "funds insufficient". So, after complying with the mandatory provisions, he issued the demand notice (legal notice) to the petitioner and thereafter filed the complaint before the Trial Court as the petitioner failed to repay the said amount covered under the cheque within 15 days from the date of receipt of the demand notice. In order to substantiate the case, the respondent-company examined one Mr. Swaminathan and got marked 5 documents and closed the case. Whereas, petitioner has seriously contested the matter taking all defence but has not produced any oral or documentary evidence to substantiate its contention. Therefore, after considering the oral and documentary evidence placed on record by the parties, the Trial court found that the petitioner accused was guilty of the offence punishable under Section 138 of the N. I. Act and directed the petitioner to pay a fine of Rs. 22 lakhs and on deposit of the same, to pay a sum of rs. 20 lakhs to the complainant as compensation. The petitioner being not satisfied with the order of conviction and sentence passed by the trial Court preferred an appeal before the 13th Additional Sessions judge, Mayo Hall, Bangalore, and after reappraisal of the entire evidence placed on record, the learned Sessions Judge also found that there is no perverse or illegal findings recorded by the Trial Court in convicting the petitioner and dismissed the appeal. Hence, this revision.

(3.) I have heard the arguments of the learned Counsels for the petitioner and submitted that the cheque in question issued as a collateral security and not as discharge of any legally recoverable debt, therefore, the impugned order under revision is liable to be set aside. Learned Counsel for the petitioner draw the attention of this Court at para 3 of the complaint which reads thus: