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TMI Blog2022 (11) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Companies Act. Accused No. 2 and one Smt. Menaka were the directors. The company was under financial distress. Accused No. 2 was introduced to the complainant by one Shivalingaiah. The complainant agreed to meet the urgent business requirements and to discharge the loan raised by the accused from KSFC, banks and other financial institutions. The accused executed security documents and borrowed money from the complainant several times commencing from July, 2006. They were found due in a sum of Rs. 1,90,50,000/-including interest as on 5.2.2009. The complainant came to know that accused No. 2 had made misrepresentation about status of first accused-company and his credibility. Then he demanded for repayment. In this connection a meeting was held and at that time accused No. 2 executed a letter of acknowledgment dated 5.2.2009 on behalf of accused No. 1 and in furtherance of the same, he issued the above said cheques. The first cheque was issued by accused No. 2 on behalf of first accused-company and the remaining two cheques were of his personal bank account. 3. The complainant adduced evidence as PW.1 and also examined another witness viz., R.Balaji Singh as PW.2. He got m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent submitted that the complaint was not at all maintainable for the reason that second accused issued the cheque Ex.P.1 on behalf of the first accused-company. It was a cheque belonging to company. Two other cheques as per Ex.P.2 and P.3 were the personal cheques of the second accused. That means cheques were drawn on two different accounts. A single complaint for two different causes of action is not maintainable. Though this point was not urged before the trial court, the same can be considered in the appeal as it is a legal issue. He further argued that the complainant should have issued two different demand notices. This was also not done. The complaint does not disclose the liability of the first accused-company and the liability of the second accused. 8. He further argued that the accused issued reply as per Ex.P.20, to the demand notice and made his stand very clear before filing of the complaint. The complainant does not deny the transactions depicted in Ex.D.1 to D.4. When he became part of management of the company, the complainant could not have taken any action against the company. Actually he entered the company by buying the shares of accused No. 2 and his wife Smt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to sections 219, 220(1) and 223(a) Cr.P.C. Section 219(1) provides for charging and trial of a person who is accused of committing more offences of the same kind within a space of twelve months, but a single trial for more than three offences is not permitted. To apply section 220 (1) Cr.P.C., the requirement is that same person should commit more than one offence in a series of acts so connected together as to form the same transaction. These two sections are applicable only when accused person is same. Section 223 of the Code deals with a situation of charging and trying more than one accused together. Clause (a) of section 223 is relevant in the context on hand. It states that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. As to the meaning of the expression "same transaction", reliance may be placed on the judgment of the Supreme Court in "Expeditious Trial of Cases under section 138 of N.I.Act" [Suo Moto Writ Petition (Crl.) No. 2/2020. In para 15, it is held: "15. Offences that are committed as part of the same transaction can be tried jointly as per Section 220 of the Code. What is meant by "same tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it was taken on record as an exhibit. Any way coming into being of MoU is not disputed and it indicates that second accused and his wife Smt. Menaka resigned their Directorship of the Company and the complainant agreed to take over the company. The complainant also agreed to submit Form 32 to the Registrar of Companies. Sri. Puttige Ramesh argued that Form 32 should have been submitted by outgoing directors, and it was not submitted. It is not in dispute that Form No. 32 was not submitted to the Registrar of Companies, and thereby notwithstanding the stipulations found in Ex.D.4, there did not come into effect any change in the management of the company. It is true that Ex.D.1, which is a resolution dated 23.2.2008 shows that the complainant and Smt. Sheela Kumar were appointed as the directors. In Ex.D.2 the complainant is shown as the occupier of the company. Ex.D.3 is a letter dated 26.2.2008 written by the complainant as the Managing Director accepting the resignation of one Ramesh H.K. Ex.D.7 is a Photostat copy of a letter dated 10.2.2009 written by the second accused to the Registrar of Companies stating that the Company was taken over by the complainant and he came to kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued within the prescribed time. Demand was not fulfilled and thereby penal consequences under Section 138 of N.I. Act ensued. For these reasons, the findings of the Magistrate cannot be sustained. Point No. 2 is therefore answered in negative. POINT No. (iii):- 14. In view of discussion on points (i) and (ii), the acquittal judgment requires to be set aside. In regard to dishonour of cheque as per Ex.P.1, the first accused is to be convicted and in terms of section 141 of N.I.Act, accused No. 2 who is its Managing Director is to be sentenced. And in regard to cheques as per Ex.P.2 and Ex.P.3, accused is to be held guilty and sentenced for the offence under section 138 of N.I.Act. It may also be noted here that since the case is pending for the past thirteen years, the complainant needs to be compensated adequately from the fine amount. Hence the following: ORDER Appeal is allowed. The judgment of acquittal in C.C. No. 31986/2009 on the file of XXII Addl. Chief Metropolitan Magistrate, Bengaluru is set aside. Conviction for the offence under section 138 of N.I.Act is recorded against first accused. For the conviction recorded against accused No. 1, second accused is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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