TMI Blog2022 (11) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... he same. The transaction pertains to loan liability of the first accused-company. Therefore what is deducible is, second accused who stands in dual capacity can be tried together for the dishonour of the cheque of the company and two cheques of his personal bank account. A single demand notice was enough and a single complaint is maintainable. Existence of legally enforceable debt or not - HELD THAT:- There is no effective cross-examination of PW.1 on Ex.P.22. One suggestion found is that the complainant has misused Ex.P.22. That means accused No. 2 does not dispute execution of Ex.P.22 and according to him it was misused. Therefore if on 5.2.2009, Ex.P.22 came into existence nullifying the MoU and other agreements, Ex.D7,D.8 and D.9 can hardly have any effect. If this is the picture obtainable from documentary evidence, the findings of the Magistrate cannot be sustained. A clear conclusion can be drawn that the cheques were issued for discharging part of the liability of the company - It is admitted that the cheques were dishonoured for insufficiency of funds in the bank accounts. Demand notice was issued within the prescribed time. Demand was not fulfilled and thereby penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 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 marked 25 documents as per Ex.P.1 to P.25. The second accused adduced evidence as DW.1 and relied on 10 documents as per Ex.D.1 to D.10. 4. It is pertinent to mention here that the complainant initiated action against three accused. Accused No. 3 was another director of first accused-company. Later on she was dropped from the proceeding as per order of this court dated 18.01.2011 in Crl.P. No. 4638/2010. 5. The impugned judgment of the trial court does not disclose appreciation of evidence. Simply extracting the oral testimonies of the witnesses and referring to the marked documents, the trial court has held that on the basis of the decisions cited and defence taken by the accused, the complainant has failed to give contrary evidence and as such he has failed to prove the existence of legally enforceable liability and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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. Menaka. All these transactions are forthcoming in the documents got marked by accused No. 2. He further submitted that the cheques in question were issued by way of security for the loan obtained by the second accused before the complainant took over the management. Having noticed this aspect of the matter, the trial court came to conclusion that the complainant could not have initiated action for the offence under section 138 of N.I.Act. There is no infirmity in the judgment of the trial court and thereby appeal deserves to be dismissed. 9. From the arguments, the points emanating for discussion are:- i. Whether a single complaint in respect of a cheque issued on behalf of the first accused company and two other cheques relating to the personal bank account of the 2nd accused is maintainable? ii. Has the Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transaction is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors. 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 know that Form 32 had not been filed. This letter does not contain seal of the Office of Registrar of Companies for having received original of it, and therefore it cannot be relied upon. Ex.D.8 and Ex.D.9 are copies of two letters dated 21.1.2009 and 5.2.2009 respectively addressed by the second accused to the Branch Manager of Bank of India, Bangalore Main Branch, K.G.Road, Bengaluru stating that the company had been taken over by the complainant. Ex.D.8 does not contain acknowledgment seal of the bank, but Ex.D.9 contains such a seal. It is clear that the endeavour of the accused by producing these documents was to rebut the evidence of the complainant that the cheques became unenforceable and thereby legally enforceable liability did not exist. But the complainant relies on Ex.P.22 which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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