IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION No.896 OF 2014 BETWEEN:
1. MR. ANTONY VARGHESE KOLUTHARA S/O K.P.VARGHESE AGED 65 YEARS MANAGING DIRECTOR R/AT VII/45, KELTRON ROAD KOLUTHARA EXPORTS PVT. LTD., AROOR-688534, ALLEPEY DISTRICT KERALA.
2. MR. A.C. MATHEW AGED ABOUT 85 YEARS EX-COMPANY SECRETARY KOLUTHARA EXPORTS LTD., R/AT VII/45, KELTRON ROAD AROOR-688534, ALLEPPEY DISTRICT KERALA.
...PETITIONERS (BY SRI VINAY.T.R, ADV. FOR SRI SUDHINDRA, ADV.) AND M/S HMT (INTERNATIONAL) LTD., NO.59, BELLARY ROAD, BANGALORE-560032 REP. BY IT’S GENERAL MANAGER SRI. SUDHINDRA GARDESA (BY SRI. NEERAJ SHASTRY, ADV. FOR SRI T.SURYANARAYANA, ADV.) …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE XXI ADDL. C.M.M., BANGALORE IN C.C.NO.33410/99 DATED:19.06.2009 SET ASIDE THE ORDER CONFIRMING ORDER OF CONVICTION AND SENTENCE PASSED BY THE P.O., FTC-8, BANGALORE IN CRL.A.NO.574/2009 C/W 575/2009 BY ITS ORDER DATED:26.09.2014.
THIS CRIMINAL REVISION PETITION COMING ON FOR ORDER THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER This Criminal Revision Petition is filed challenging the judgment rendered by the Court below in Crl.A.No.574/2009 C/w Crl.A.No.575/2009 dated 26.09.2014, whereby the appeal came to be dismissed confirming the judgment of conviction and order of sentence rendered by the Trial Court in C.C.No.33410/1999 dated 19.06.2009 for the offences punishable under Section 138 of the Negotiable Instruments Act.
2. The factual matrix of this petition relating to Crl.A.No.575/2009 is that accused No.1 M/s.Koluthara Exports Ltd., having its registered office at VII/45, Keltron Road, Aroor 688534, Alleppey District, Kerala and accused No.2 Antony Varghes Koluthara, Managing Director, M/s. Koluthara Exports Ltd., VII/45, Keltron Road, Aroor 688534, Alleppey District, Kerala. This appeal is relating to the case in C.C.No.33410/1999. The complainant is a public limited company carrying on business of exporting engineering and non- engineering goods, commodities etc., which is stated therein. The accused No.1 is a public limited company carrying on the business of processing and exporting marine products. The accused Nos.2 to 7 are the Directors of the first accused and they are involved in the day to day business of the company and aware of the transaction taken place. Whereas, the first accused entered into an agreement with the complainant on 22.01.1997 agreeing to export marine products processed by it to its overseas customers on behalf of the complainant. In continuation of the agreement entered into between the parties the complainant paid Rs.50,00,000/- each on 12.07.1999 for encashment through their bankers, Canara Bank, Cunningham road branch, Bangalore. The complainant presented the cheque for encashment and the same was dishonoured with an endorsement issued by the bank “stop payment”. Subsequently, the complainant has filed the proceedings under Section 138 of the Negotiable Instruments Act. Thereafter filed the complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the NI Act. Subsequently, the accused has participated in the proceedings, the plea has been recorded by the trial court where the accused has not pleaded guilty but claims to be tried. Accordingly, the trial has put on. On behalf of the complainant PW1 was examined and got marked Exs.P1 to P31. Subsequently, after the closure of the evidence of the prosecution, the accused was examined as required under Section 313 Cr.P.C., whereas accused has denied the truth of the evidence. Subsequently examined DW1 and DW2 and also on the part of the defence, Exs.D1 to D17 has been got marked. Subsequently, heard the arguments advanced by the learned counsel for the complainant and defence counsel, convicted the accused in C.C.No.33410/1999 for the offence punishable under Section 138 of the Negotiable Instruments Act, the same has been narrated in the operative portion of the impugned judgment.
3. The accused Nos. 1 and 7 have preferred appeals before the First Appellate Court in Crl.A.Nos.574/2009 and 575/2009 challenging the judgment of conviction and order of sentence rendered by the Trial Court in C.C.No.33410/1999 dated 19.06.2009. The First Appellate Court dismissed Crl.A.Nos.574/2009 and 575/2009 by order dated 26.09.2014. The aforesaid judgment rendered by the First Appellate Court has been challenged in this Criminal Revision petition.
4. The learned counsel for the petitioners and the respondents filed an application i.e., I.A.No.1/2019 for compounding the offences under Section 147 of the Negotiable Instruments Act r/w Section 320(8) of Cr.P.C., whereas in the said application it is stated that in pursuance to the trade transaction, the petitioners/accused for and on behalf of the Company M/s.Koluthara Exports Limited had issued two cheques in favour of the respondent Company amounting to Rs.50 laksh each. Due to the dishonoring of the cheque issued by the accused/complainant, the complainant has initiated prosecution against the accused in C.C.No.33410/1999 before the Trial Court. The same has been narrated in the application filed by both the petitioner/accused and the respondent/complainant. The judgment of conviction and order of sentence passed by the trial court has been challenged before the First Appellate Court and subsequent to the dismissal of the Crl.A.No574/2009 C/w. Crl.A.No.575/2009 this criminal revision petition has been filed by the petitioners/accused challenging the judgments rendered by the courts below.
5. It is further stated in the application that the petitioner/accused produced herewith a proof of payment for having paid Rs.100 lakhs to the respondent/company as per the agreement and settlement dated 27.05.2019. The respondent/ complainant produced Board resolution of the respondent company which is duly signed by its Managing Director acknowledging the settlement and receipt of payment to compound the offences. The document Nos.1 and 2 produced by the petitioner Nos.1 and 2 for the purpose of settlement between the petitioners and respondent. The petitioner No.2 is no more. In this application it is specifically stated that the petitioner has produced herewith the death certificate of the petitioner No.2, namely Mr. A.C. Mathew producing the medical certificate of the petitioner No.1, namely Mr. Antony Varghese Koluthara who is aged more than 70 years with multiple health complications and therefore petitioner No.1 is to be exempted. However the very petitioner No.1, who has prosecuted and signing the cheque as Managing Director of Company, the authorized representative of M/s.HMT (International) Ltd., be permitted to represent the company. The death certificate and medical certificates are produced as documents No.3 and 4 for the purpose of perusal. These are all the contentions in the application filed by the petitioner/accused and respondent No.1/ complainant with regard to compounding of the offences and acquit the petitioners/accused.
6. The learned counsel for the petitioners and the respondent respectfully submits that the letter of authorization dated 09.10.2019 was issued in favour of Smt. Neha Singh, Officer (HR). In that letter of authorisation Miss. Neha Singh, Officer (HR), HMT (International) Limited, was authorized to engage the advocates, execute vakalaths and to sign, swear to, affirm to in connection with the case. It is further authorized her to act generally on behalf of the Company in regard to the above case. The same has been noted in this petition. Due to compounding of the offences as narrated in detail in I.A.No.1/2019, it is appropriate to consider I.A.No.1/2019 which is filed by the petitioner/accused No.2 and so also the respondent/complainant. As Ms.Neha Singh who received the authorization letter issued by the HMT (International) Ltd., dated 09.10.2019, the contention as stated in the said application has been appraised to them in the presence of their counsel. Consequently, said I.A.No.1/2019 is hereby accepted. Due to the acceptance of the said I.A.No.1/2019 filed by them, the judgment rendered by the First Appellate Court in Crl.A.No.574/2009 C/w.Crl.A.No.575/2009 dated 26.09.2014 and the judgment rendered by the Trial Court in C.C.No.33410/1999 dated 19.06.2009 are hereby set aside. Consequent to the setting aside of the aforesaid judgment, the petitioner/accused No.2 herein is hereby acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. Accordingly, this Criminal Revision Petition is disposed of. In view of the disposal of the revision petition, the surety bond for the accused is hereby stands cancelled.
Sd/- JUDGE KLY/