Achutha B. Shetty vs Sri Gokarnanatha Sahakari Bank Ltd.

K. Ramanna, J.—Though the matter is listed, for admission with the consent of learned Counsel for the petitioner and learned Counsel for respondent, matter has been taken up fox final ha axing and is being disposed of by this judgment.

Petitioner herein has come up with this revision petition challenging this correctness and legality of the order of dismissal of Crl.A. No. 155/2007 passed by FTC-I, Udupi, dated 11.3.2008, and the order of conviction and sentence passed by the III Addl. Civil Judge (Jr. Dn) & JMFC, Udupi in cc.No.6208/2004 whereby he is convicted for an offence punishable u/s 133 of N.I. Act and sentenced to pay a fine of Rs. 2,00,000/-. In default of payment of fine, he shall undergo simple imprisonment for six months, out of the fine amount, Rs. 1,95,000/-shall be paid to the respondent by way of compensation and Rs. 5000/- shall be deposited as fine to the state exchequer.

The case of the respondent-complainant is that the petitioner-accused is the owner of Abhyudaya Enterprises and ha has been running the said enterprises. For business purposes, he had availed overdraft facility from the respondent-bank: to the extent of Rs. 3,50,000/- agreeing to pay interest on the said overdraft facility from time to time. To that effect ha has executed an agreement undertaking to clear off the amount due under overdraft facility within a stipulated time. Since the petitioner did not pay the amount due, he owed a sum of Rs. 5,25,573/- to the respondent in the year 2003. Towards part-payment of the said amount, cheque EX.P-2 came to D9 issued for Rs. 1,80,000/-, dated 29.3.2003 which cane to be dishonoured when presented for encashment. The banker of the respondent issued an endorsement ''insufficient funds.'' In spit a of receipt of legal notice as par EX.P-4, petitioner neither paid the amount nor sent any reply. Therefore private complaint cane to be filed initially through the Branch Manager Sri Devadas, son of late Sri K.P. sanil. Subsequently on 20.2.2006 one Krishna Poojary cam to be examined and the statement of clerk of the respondent-bank was recorded. Thereafter summons was issued to the petitioner-accused. He appeared through Counsel and pleaded not guilty. Accordingly PW.1 was further examined and cross-examined. At the time of recording sworn statement, Exs.P-1 to P-6 were marked vide order dated 23.9.2004. According to the sworn statement of PW.1, he, was duly authorised by the bank to prosecute the cage. The petitioner herein has examined himself as DW.1 but not produced any documents. After considering the evidence, trial court convicted this petitioner and sentenced to pay a fine of Rs. 2,00,000/- which was challenged by him in Crl.A. No. 155/2007 before the Fast Track Court, Udupi which was dismissed. Therefore he has come up with this revision.

The main grounds urged by the learned Counsel for the petitioner is that at the time of filing the complaint through the Manager, the respondent-bank did not authorise him to do so but subsequently authorised some other person to prosecute the case but the authorisation letter is not produced. Therefore the order of conviction and sentence passed by the trial court is to be sat aside, since complaint is presented without authorisation and subsequently the person to whom they, said to have authorised has not produced any authorisation letter. It is further argued that the petitioner be acquitted of the aforesaid offence, on account of no authorisation to prosecute the case by the respondent through its Manager. In this behalf, learned Counsel for the revision petitioner relied on a decision rendered by this; court in the case of Om Shakthi SC/ST and Minority Crdit Co-Operative Society Ltd. v. M. Venkatesh ILR 2007 Kar. 5126 wherein it has been held that presentation of the complaint by the society through its President without authorisation it bad in law and therefore complaint is not maintainable, while arguing the case, learned Counsel for the petitioner draw the attention of the Court to paragraph 9 of its judgment therefore it is submitted that the revision petition be allowed. Again, he has referred to Section 142 of N.I. Act.

On the other hand, learned Counsel for the respondent Sri K.M. Nataraj submitted that initially complaint came to be filed through its manager Sri Devaraj and at the time of recording sworn statement, respondent-complaint examined its official by producing authorisation which was duly marked as EX.P-1 but unfortunately the said authorisation is missing from LCR. Therefore manager of the bank is and. tied to file a complaint but the sworn statement has not been recorded. Subsequently sworn statement of the official was recorded. Therefore the private complaint filed by the respondent is maintainable in law. While arguing the case, learned Counsel for the respondent drew the attention of the Court to the sworn statement of PW.1 wherein the second sentence of the sworn statement discloses that on order to represent the complainant, the complainant-company has given authorisation which was marked as Ex.P-1 on 23.9.2004. In all six documents were exhibited which includes the authorisation. Therefore at the time of taking cognizance and issuance of summons, Ex.P-1 authorisation was very much available and marked but it was not found in the record. Therefore complaint was filed with authorisation latter. It is further argued that during the pendency of the criminal appeal, the petitioner has deposited Rs. 1,00,000/- and subsequently a sum of Rs. 25,000/- before the trial court. Since the petitioner is due in a sum of Rs. 5,00,000/- and odd as on the date of filing of the complaint, therefore the trial court has rightly convicted the petitioner directing his to pay a fine of Rs. 2,00,000/-. Hence there is concurrent finding recorded by the courts-below which does not require any interference. The courts-below have rightly appreciate the evidence. Hence he prays for dismissal of the petition.

I have carefully examined the material placed on record. It is an admitted fact that the petitioner has issued the cheque Ex.P-2 but not Ex.P-1. Lower Court Record indicates that cheque has been marked as Ex.P-2. but not as Ex.P-1. Ex.P-1 was the authorisation letter marked through PW.1 while recording his sworn statement. By the time trial vas fixed, Ex.P-1 vas missing for the reasons best known to the parties concerned. Therefore on that count maintainability of the complaint filed by the respondent through its manager initially cannot be questioned. Subsequently sworn statement of the clerk of the respondent-bank, to whom authorisation was issued, was recorded. The petitioner has not disputed the issuance of the cheque and the amount, due. Further it is not in dispute that during thus pendency of the trial, the very petitioner has filed a sworn affidavit that he has sent DD for Rs. 3,00,000/- to the respondent which has Lot bean disputed about the receipt of DD for Rs. 3,00,000/-. Subsequently the petitioner has paid Rs. 1,00,000/- on 25.1.06 and Rs. 25,000/- on 13.6.08.

Coming to the decision referred to by the learned Counsel for the petitioner in case of Om Shakthi SC/ST & Minority Credit Co-Operative Society referred to supra, wherein the complaint was filed by the President of the Co-operative Society who was not an employee of the society, in that case neither the bye-laws nor any resolution was passed by the Society for authorising the President to file a private complaint for bouncing of the cheque. Therefore the Co-ordinate Bench of this Court ha Id that the presentation of the complaint by the Society through its President without authorisation is bid in law. The complaint was not accompanied with bye-laws of the society to establish the same. In this case, the complaint came to be initially filed through one Devadas, Branch Manager of the said bank. Complaint was filed on 6.5.03. It seems that on that day the statement of the complainant has not been recorded. On 23.9.03 sworn statement of authorised officer namely PW. 1 was recorded. At the time of recording sworn statement authorisation was very mud! available on record which was marked as Ex.P-1 but at the time of trial the authorisation letter issued to PW.1 was not available. Therefore the Courts-below without looking into the exhibits available, though cheque has been marked as Ex. P-2, in their judgment it was observed as Ex.P-1 which is improper. A complaint filed by the bank through its manager who is an official of the Rank does not require any authorisation. Therefore the contention of the learned Counsel for the revision petitioner that at the time of filing the complaint, there was no authorisation and the Courts-below ought to have dismissed the complaint at not maintainable is incorrect. Subsequently the clerk was authorised to prosecute the case who vas authorised with a document i.e. authorisation letter. Therefore the complaint filed vas very much maintainable.

As far as the fine imposed by the trial court to the extent of Rs. 2,00,000/-, it is a fact that during the pendency of the complaint, the petitioner might have deposited Rs. 3,00,000/- with the respondent towards amount due by him to respondent but after the order of conviction and sentence passed, he has deposited before trial court before trial court, in all, Rs. 2,25,000/-towards the fine amount. Amount, if any, deposited in the KAT in pursuance of the award passed might have been adjusted towards total amount due by the petitioner which is not the criteria to reduce the fine imposed on petitioner, whether ha has paid Rs. 2,00,000/- is the question, but since ha has paid only Rs. 1,25,000/- after the judgment and order of conviction, he is liable to pay the balance of fine amount. Viewed from angle, the judgment and cedar of conviction and sentence passed by the courts-below does not suffer from any legal infirmity. Hence revision petition is dismissed.

Considering the facts and circumstances of the circumstances of the case, is granted one month''s time to deposit balance fine amount of Rs. 75,000/-.