Criminal Appeal filed by complainant to set aside acquittal under Section 138 NI Act. High Court upheld acquittal because statutory notice was issued beyond 30 days of bank intimation, a fatal procedural flaw under the proviso.
Amendment to appeal rejected; acquittal of respondent/appellant confirmed; appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF DECEMBER 2020
BEFORE
THE HON’BLE MR.JUSTICE RAVI V.HOSMANI
CRIMINAL APPEAL No.100095/2014
BETWEEN:
SHRI BABU S/O IRAPPA SHIRALI, AGE: 38 YEARS, R/O GUMMANHAKLA, SHIRALI, TQ: BHATKAL, DIST: KARWAR.
... APPELLANT
(BY SRI VAGEESH R.HEGDE, ADVOCATE FOR SRI VENKATESH M.KHARVI, ADVOCATE)
AND
SHRI NARAYAN S/O NAGAPPA NAIK, AGE: 30 YEARS, R/O GUDIGADDE, SHIRALI-2, TQ: BHATKAL, DIST: KARWAR.
... RESPONDENT
(BY SRI SURESH S.BHAT, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. SEEKING TO ALLOW THIS APPEAL AND SET ASIDE JUDGMENT DATED 12.03.2014 PASSED BY THE ADDL.CIVIL JUDGE AND J.M.F.C. COURT, BHATKAL IN C.C.NO.460/2012.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging judgment dated
12.03.2014 passed by the Addl.Civil Judge and J.M.F.C. at Bhatkal in C.C.No.460/2012 acquitting accused for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I.Act’, for short).
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not either reply to it or make payment, constraining complainant to file complaint.
complainant and taking cognizance, summons was issued to accused. Accused appeared, denied the charges and sought for trial. During trial, complainant examined himself as PW1 and two other witnesses as PW2 and PW3. He also got marked cheque as Ex.P1, bank memo as Ex.P2, statutory notice as Ex.P3, postal endorsement as Ex.P4, copy of specimen signature card as Ex.P5 and copy of loan ledger extract as Ex.P6.
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1. Whether the complainant proves the existence of legally recoverable debt?
2. Whether the complainant has complied with all the mandatory requirements as contemplated under Section 138 of the Negotiable Instruments Act?
3. Whether the complainant proves that the accused committed the offence punishable under Section 138 of the Negotiable Instruments Act?
4. What order?
appearing for Sri Venkatesh M.Kharvi submitted that complainant proved the signature of accused on the cheque by examining Manager of Vijaya Bank as PW3.
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The accused had account in Vijaya Bank and PW3 produced Ex.P6-the ledger extract showing that accused used to sign in English also. The accused’s signature in Ex.P6 is similar to his signature on Ex.P1-cheque. Thus having proved accused’s signature on Ex.P1-cheque. Presumption under Section 118 and 139 of the N.I. Act was available to complainant. It was submitted that even in the absence of any rebuttal evidence by accused, trial Court acquitted the accused which caused miscarriage of justice. It was further submitted the reason assigned by trial Court that failure to mention date on which the loan was borrowed is factually incorrect as the same is clearly mentioned in the statutory notice as well as the complaint. Even the next reason that non-examination of any other person casted doubt about loan transaction is also unsustainable as the complainant had duly proved the transaction and the accused had failed to rebut
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the presumption in favour of the complainant. It was also pointed the decision in K.Vishwanath Pai V/s Venkatesh S.Bhat, reported in 2009(1) KCCR 508, by trial Court was also unjustified as the same was in turn with reference to the decision of Hon’ble Supreme Court in Krishna Janardhan Bhat V/s Dattatraya G.Hegde reported in (2008) 4 SCC 54, which was overruled by the Hon’ble Supreme Court in Rangappa V/s Sri Mohan reported in (2010) 11 SCC 441. Hence, all the reasons assigned by trial Court in support of impugned judgment were perverse. Hence sought for setting aside order of acquittal and for conviction of accused.
Suresh S.Bhat submitted that there was serious
doubt about signature of accused on cheque. There was no similarity between his signature on Ex.P5, the signature specimen card produced by complainant
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with on the cheque Ex.P1. Learned counsel also submitted that issuance of statutory notice in this case was beyond period of thirty days from the date of receipt of intimation about dishonour of the cheque and that this was one of the reasons for trial Court to pass the impugned judgment of acquittal.
impugned judgment and record.
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reason in this case avails from a perusal of Ex.P2, intimation from Bank. It is seen that no date is mentioned in Ex.P2. Even though Manager of Syndicate Bank, the complainant’s banker is examined as PW2, the said witness has not stated about the date of presentation of cheque or date of intimation. But the statutory notice Ex.P3 is issued on 11.01.2012. Ex.P4 also reveals that article was booked on 11.01.2012 and delivered to addressee on 14.01.2012. Thus, it is clearly established that statutory notice was issued to accused beyond period
of thirty days, in contravention of clause-(b) to proviso to Section 138 and hence acquittal of accused is totally justified. I am also supported by decision of Hon’ble Supreme Court in the case of Kamlesh Kumar V/s State of Bihar and another reported in (2014) 2 SCC 424. Though the other reasons assigned by trial Court may be perverse. The end result does not call for interference.
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Appeal is devoid of merits and is accordingly
dismissed.
SD/JUDGE
CLK
2 issues framed by the court
Whether the statutory notice under Section 138 of the Negotiable Instruments Act was issued within 30 days of receipt of intimation from the bank.
Whether the acquittal of the accused, despite flaws in the trial court's reasoning, was justified due to the violation of the thirty-day limitation for sending notice.
Colour shows how this judgement treated each authority
K. Vishwanath Pai Vs Venkatesh S. BhatReferred¶36
K.Vishwanath Pai V/s Venkatesh S.Bhat, 2009(1) KCCR 508
Krishna Janardhan Bhat Vs Dattatraya G. HegdeReferred¶36
Krishna Janardhan Bhat V/s Dattatraya G.Hegde, (2008) 4 SCC 54 · Who else cites this
Rangappa Vs Sri MohanFollowed¶36
Rangappa V/s Sri Mohan, (2010) 11 SCC 441 · Who else cites this
Kamlesh Kumar Vs State of Bihar and anotherFollowed¶48
Kamlesh Kumar V/s State of Bihar and another, (2014) 2 SCC 424 · Who else cites this
3 provisions across 2 enactments
SHRI BABU S/O IRAPPA SHIRALI
SHRI NARAYAN S/O NAGAPPA NAIK
RAVI V. HOSMANI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
