RAMESH SANTHANAM Vs. SADASHIVA RAO AND ORS.

JUDGEMENT

(1.) This is the appeal preferred by appellant-complainant being aggrieved by the part of the judgment dated 22.1.2010 passed by the 13th Additional Chief Metropolitan Magistrate, Bengaluru passed in Crl. Case No. 25484/2005 acquitting respondent Nos. 1 to 3-accused Nos. 3 to 5 of the offence punishable under Section 138 r/w. Section 141 of the Negotiable Instruments Act (for short 'the Act').

(2.) The case of the complainant in brief is that M/s. Interactive Infonet Limited, accused No. 1, is a company registered under the Companies Act having its office at No. 13, Krishna Reddy Layout, Domlur, Bengaluru, while accused No. 2 Rajaram Khandige along with Sadashiva Rao, V.T. Vijaya Krishna and Ananth Bhat, are its directors. The appellant was informed that M/s. Interactive Infonet Limited was started with an object to set up call centres. In that connection, the company borrowed Rs. 5.00 lakh on 21.1.2002 from the appellant and in token thereof, executed an on demand promissory note signed by Rajaram Khandige (2nd accused), an authorised signatory of M/s. Interactive Infonet Limited, on its behalf, agreeing to repay the same with interest at 20% p.a. on the said amount and the same is acknowledged by a letter dated 22.1.2002 signed by him. The company gave 15 cheques towards the interest due payable in respect of the said borrowing along with a post dated cheque for Rs. 5.00 lakh towards the principal amount. By a letter date 8.4.2002, a request was made for return of the cheques issued earlier and in replacement thereof, issued cheques bearing Nos. 814923 to 814935, each for Rs. 8,333/- towards interest for the period 22.4.2002 to 22.4.2003 and a cheque bearing No. 782730 dated 22.4.2003 for Rs. 5.00 lakh towards principal amount vide letter dated 22.4.2003. All the respondents assured the complainant that the cheques as and when presented would be honoured and encashed. All the above cheques were signed by Rajaram Khandige as a director of the company being its authorised signatory by its board of directors consisting of respondent Nos. 1 to 3. Appellant was made to believe that Rajaram Khandige was authorised to make payment on behalf of the company by all its directors. All the cheques when presented returned with an endorsement "exceeds arrangements". The same was intimated to the company and also to all the respondents by the appellant. But the respondents held out promises that they will pay the money within reasonable time and make good the loss. When the appellant-complainant approached the company and the directors for repayment of the amounts due to him and also interest on their borrowing, he was given another consolidated cheque on behalf of the company and signed by Rajaram Khandige, bearing No. 151294 for Rs. 6,28,000/- dated 12.1.2004 drawn on the Karnataka Bank, Koramangala Extension, Bengaluru. When the appellant tendered the said cheque for encashment, it was bounced and the Karnataka Bank, Koramangala branch, issued an endorsement dated 12.2.2004 stating 'funds insufficient'. Immediately, thereupon, the appellant informed the company and the authorised signatory and the respondents. Rajaram Khandige, one of the directors, altered the date of the cheque from January 12, 2004 to August 12, 2004 and affixed his signature below the corrected date with a request to present the cheque for encashment. He was authorised by the board of directors which consists of the respondents to sign the cheques on behalf of the company and its directors. He also assured the appellant on behalf of the company and the other directors that the cheque when presented would be encashed. Having regard to his past experience with the respondents, the complainant initially hesitated and refused to act on the false assurances and promises given by the respondents about genuineness of their action. But however, he presented the cheque dated 12.8.2004 for encashment, since it was still valid for payment by bankers of the company. To his astonishment, the cheque found its way back on 6.1.2005 having been refused and rejected to be encashed by the bankers of the company with an endorsement 'funds insufficient'. Immediately, thereafter, the appellant telephoned to the authorised signatory and the respondents, but without any result. The appellant got issued notice dated 13.1.2005 calling upon the respondents and the company and its authorised signatory to pay the amount covered by the cheque and also to compensate him for the financial injury suffered by him equal to the amount due and payable to him under the cheque in question. The company and its authorised signatory and the respondents were requested to pay Rs. 6,28,000/- towards liability of the respondents and also pay interest at 20% p.a. on Rs. 5.00 lakh from January 2004 up to the date of payment within 15 days form the date of the notice reached to them. The company and the authorised signatory having received the notice on 17.1.2005 did not send any reply. While the respondents, after having received the notice sent to their residences/offices, have got sent the reply through their counsel on 31.1.2005 denying the liability and the responsibility to make the payment. Then the appellant approached the trial court by filing a complaint under Section 200 Cr.P.C. After the cognizance was taken and process was issued, the respondents appeared before the Trial Court. After conclusion of the trial and considering the materials placed on record, both oral and documentary, the trial court convicted accused No. 2 being director of accused No. 1-company and held him guilty for the offence punishable under Section 138 of the Act. However, the trial court acquitted accused Nos. 3 to 5, who are the respondents herein. Being aggrieved by the judgment and order passed by the trial court acquitting the respondents herein and also challenging the legality and correctness of the said judgment and order, the appellant complainant has preferred the present appeal on the grounds mentioned at Sl. Nos. 17 to 38 in the appeal memorandum.

(3.) Heard the arguments of the learned counsel appearing for the appellant complainant and the learned counsel appearing for the respondents accused.