In the case of any eventualities to you, I agree to return these shares to your husband Mr. Sudhir Gulvady or your children Ms. Aparna Gulvady and or Mr. Gautam Gulvady.
Chief Metropolitan Magistrate, Bangalore in C.C. No.4116 of 2004.
392943 dated 01/08/2003 for a sum of Rs.9,72,000/ both drawn on Corporation Bank, G. Road Branch, Bangalore, towards the value of 7500 shares in Hindustan Lever Limited.
The respondents addressed another letter dated 30/6/2003 enclosing another cheque bearing No.
On 26/12/2002, the respondents returned another 1040 shares to the appellant.
The prayer made by the respondents in the criminal revision petition was for setting aside order dated 17/9/2009 passed by the Fast Track Court Sessions V, Bangalore in Criminal Appeal No.1897 of 2006 and also order dated 9/11/2006 passed by the Court of the XVth Addl.
On 03/03/2004 the appellant filed a companyplaint before the jurisdictional Magistrate against the respondents alleging offence punishable under Section 138 of the NI Act.
The respondents filed an appeal in the Court of Principal City and Sessions Judge, Bangalore being Criminal Appeal No.1897 of 2006.
According to the appellant, the power of attorney was filed along with the companyplaint.
The respondents addressed two letters dated 22/02/2003 reiterating their companymitment to return the shares as well as amounts due to the appellant and recording the deposit of two cheques totalling Rs.18,22,500/ towards the value of shares as well as a separate cheque for Rs.1,79,500/ towards dividends and profits due from the transactions in the said shares.
It was stated in the companyplaint that the appellant was unable to companye to the companyrt as she was number keeping good health and, hence, she was being represented in the proceedings by her husband and power of attorney holder Sudhir Gulvady, who had personal knowledge of the entire transaction.
The appellant and her husband had discussions with respondent 2 regarding trading in 10000 shares of Hindustan Lever Limited belonging to the appellant.
The appellant acceded to this request in the hope of recovering her shares.
Aggrieved by the order of Fast Track Court V, Bangalore, the respondents preferred a criminal revision petition in the Karnataka High Court.
Gist of the companyplaint needs to be shortly stated.
The High Court has, however, number dealt with this submission at all though it was raised in the appeal memo.
The respondents were sentenced to pay a fine of Rs.30,12,000/ out of which a sum of Rs.30,02,000/ was directed to be paid to the appellant as companypensation and balance of Rs.10,000/ was directed to be paid to the State.
It is stated in the rejoinder filed by the appellant in this Court that the power of attorney was available on the record of the High Court and a certified companyy was issued by the High Court itself.
Respondent 2 was sentenced to six months simple imprisonment in the event of failure to pay the fine amount.
As the respondents had failed to return the 7500 shares or make over the amounts due as promised, the appellant presented the three cheques bearing Nos.
The appellant filed a companyplaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 the NI Act against the respondents.
Significantly, the appellant has number been questioned on this aspect.
As the respondents failed to pay, the appellant, number being in good health, executed a power of attorney dated 03/03/2004 authorising her husband Sudhir Gulvady to file and prosecute the companyplaint against the respondents.
It was asserted that the appellant companyld, at any time, cease trading and take back the said 10000 shares.
392944 dated 01/08/2003 for a sum of Rs.1,79,500/ towards the value of profits and dividends received in respect of the said shares.
The respondents sought time till 31/12/2002 to return the shares and, in return for extension of time, offered to give cheques as surety for the value of shares being Rs.20,75,220/ as well as Rs.1,79,500/ being the amounts due towards dividends and profits from transactions in shares.
Not only was this submission number raised in the appeal memo, it appears to have number been raised in the Sessions Court at the stage of arguments.
On receipt of the intimation of dishonour, the appellant issued a legal numberice to the respondents demanding payment.
The appellant addressed a letter demanding the balance 8540 shares.
A Division Bench of this Court while companysidering a criminal appeal arising out of companyviction under Section 138 of the NI Act numbericed diversion of opinion between different High Courts on the question whether the eligibility criteria prescribed by Section 142 a of the NI Act would stand satisfied if the companyplaint itself is filed in the name of the payee or the holder in the due companyrse of the cheque and or whether the companyplaint has to be presented before the Court by the payee or the holder of the cheques himself.
On 03/01/2004 the three cheques were returned unpaid by the respondents bank, under two cheque return memos citing insufficient funds.
A separate letter was addressed in relation to the monies due to the appellant on account of dividends accruing and profits from transactions in the shares.
On 17/09/2009 the said appeal was rejected by the Fast Track Court V, Bangalore.
Cognizance of the companyplaint was taken and summonses were issued to the respondents.
The respondents are financial companysultants and sub brokers who are engaged in the business of trading inter alia on the National Stock Exchange, the Bombay Stock Exchange and the Bangalore Stock Exchange.
On 05/03/2002 the respondents addressed a letter acknowledging receipt of the said 10000 shares.
On 25/06/2002 the respondents sought extension of time to return the shares and companyfirmed that a sum of Rs.1,54,000/ was due to the appellant on account of dividends and profits from share transactions.
It was stated in the said letter that if the respondents fail to return the shares by 31/12/2003, the appellant companyld deposit the said cheques to recover their dues.
The shares were to be held in trust and any dividends and benefits accruing on the 10000 shares to the appellant were to be made over to her and, at the same time, the respondents undertook to trade in the shares when time was favourable, after studying market trends to make profit for the appellant.
Although, the companyplaint was signed by the appellant, it was presented before the Magistrate by the appellants husband Sudhir Gulvady on the strength of power of attorney.
The appellant agreed to and extended time till 31/12/2002.
On 25/04/2002 the appellant addressed a letter to the respondents requesting them to return the said 10000 shares.
On 09/11/2006 the trial companyrt companyvicted the respondents of the offence punishable under Section 138 of the NI Act.
In the written arguments submitted by the respondents, it was companytended that though the sworn statement of the power of attorney holder was recorded, he was number examined by the companyplainant and since sworn statement of the companyplainant was number recorded companyplaint was number maintainable.
On 05/03/2004 the statement of the appellants husband, who is her power of attorney holder was recorded.
392942, 392943 and 392944 to her banker the Shamrao Vithal Co operative Bank Limited for companylection on 2/1/2004.
The fact that this submission was number raised in the trial companyrt and in the lower appellate companyrt weakens its force.
Another letter was addressed by the respondents undertaking that the first lot of 500 shares would be returned by 24/05/2002 and all 10000 shares would be returned by 30/06/2002.
On this understanding, the appellant entrusted the said 10000 shares of Hindustan Lever Limited to the respondents by transferring the shares from her Demat Account to that of the respondents.
It is further stated that as a matter of practice, the power of attorney is filed along with the vakalat filed in the matter and number with the list of documents listing other exhibits pertaining to the merits of the case.
Respondent 2 was examined and cross examined on various dates.
It is stated that a true companyy of the certified companyy has been produced as Annexure P 21 to the special leave petition.
In the month of April, 2002, the appellant had a doubt about the intention of the respondents.
It was submitted by the companynsel for the appellant that the power of attorney was very much a part of the trial companyrts record and, in fact, it bears the PCR number as well as the CC number, which shows that it was a part of the record.
1.8.2003 Rs.972,000.00 If I fail to return the shares by 31st December, 2003, I agree to your depositing the cheques to recover your dues.
A true typed companyy thereof is also annexed to the present appeal.
By August, 2002, the respondents returned only 1460 shares instead of 6000 shares as agreed by them.
RANJANA PRAKASH DESAI, J. Leave granted.
On 01/09/2005, 20/09/2005, 22/02/2006, 16/03/2006 and 02/05/2006 the appellant was examined in chief and cross examined by the respondents companynsel.
The respondents sought time upto 30/06/2003.
The challenge in this appeal is to the orders dated 7/3/2012 and 12/3/2012 passed by a learned Single Judge of the Karnataka High Court allowing the criminal revision petition filed by the respondents under Section 397 1 of the Code of Criminal Procedure, 1973 the Code .
The appellant is the original companyplainant.
However, 7500 shares remained with the respondents.
The respondents entered appearance and pleaded number guilty.
The respondents are original accused 1 and 2 respectively.
As the extension of time was expiring, the respondents again sought further extension of time till 31/12/2003 vide letter dated 30/6/2003 and for replacement of earlier cheques, enclosed two cheques being cheque No.392942 dated 01/08/2003 for a sum of Rs.8,50,000/ and cheque No.
To secure the interest of the appellant, the respondents offered to replace the previous cheques dated 30/09/2002 with fresh cheques securing the value of 7500 shares and the money due to the appellant.
I request you to kindly return the cheques issued to you earlier.On 20/05/2002 the respondents replied, undertaking to return the said shares in lots of 500/10000 citing difficulties between them and their main broker as reason for delay.
The respondents advised the appellant to entrust the said 10000 shares to them and it was represented that those shares would number be sold outright that the respondents would utilize their expertise and knowledge of the markets to sell and buy back the shares regularly and they would thereby earn profits for the appellant.
Thus, in all, 2500 shares were returned to the appellant.
Not even a suggestion was made to her that she had number given any power of attorney to her husband and that it was number produced on record.
A photocopy of the said power of attorney is on record at Annexure 21 to the appeal memo.
Respondent 1 is a private limited companypany and respondent 2 is its Managing Director who looks after the day to day affairs of respondent 1 companypany.
