Allowed

Sri v. N Harish S/O.Late Sri Nagaraj v Sri S Bhaskaran S/O.Late Sri B Shivaraj Reddy

Karnataka HC4 Nov 2020CRL.A/938/2011

Case brief

AI extract

What is this about?

Appeal against acquittal in a cheque bounce case. The High Court held that the trial judge erred in relying on the wrong cheque serial number in the legal notice and complaint as a fatal flaw, rather than examining the context to find no material alteration. The appeal was allowed.

What did the court decide?

The judgment dated 15.7.2011 passed in CC No.31353/2006 was set aside. The complainant's complaint was allowed, and the accused was found guilty and sentenced to a fine of Rs.2,05,000 with imprisonmen

Sri v N Harish S/O.Late Sri Nagaraj Vs Sri S Bhaskaran… — Money Laundering | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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CRIMINAL APPEAL No.938/2011

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BETWEEN:

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SRI V N HARISH S/O LATE SRI NAGARAJ AGED ABOUT 35 YEARS PROPREITOR OF VAMANA ENTERPRISES, BETTAIAH BUILDING, NEAR OLD CHECKPOST, T DASARAHALLI TUMKUR ROAD BANGALORE.

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…APPELLANT

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(BY SRI PRADEEP NAIK K, ADVOCATE)

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AND:

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SRI S BHASKARAN S/O LATE SRI B SHIVARAJ REDDY AGED ABOUT 37 YEARS R/AT No.07, 2^ND D MAIN GOKUL EXTENSION YESHWANTHPURA BANGALORE. AND WORKING AT GREEN GOOK HIGH No.37 SARJAPURA ROAD 3^RD BLOK, KORMANGALA

BANGALORE.

…RESPONDENT

(BY SRI M SHARASS CHANDRA, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED:15.7.2011 PASSED BY THE XII ACMM, BANGALORE IN C.C.No.31353/2006-ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT.

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THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Sri. Pradeep Naik K., learned counsel for appellant who has appeared before the Court and Sri. M.Sharass Chandra, learned counsel for

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respondent/accused through VC.

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The appeal is directed against the judgment passed in CC No.31353/2006 dated 15.7.2011 by the learned 12^th ACMM, Bangalore, wherein the

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accused/respondent came to be acquitted in the Criminal Case filed under Section 200 Cr.P.C. for the

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offence punishable under Section 138 of Negotiable Instruments Act. Being aggrieved by the said judgment, the complainant is in appeal.

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In order to avoid confusion and overlapping the parties are addressed in accordance with their rankings as stood before the trial court.

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The substance of the complaint is that, accused is a friend of complainant. Accused approached the complainant for financial assistance of Rs.2.00 lakh to meet his urgent family necessities promising to repay the same within two months. Complainant lent the amount to the accused. But the accused did not maintain his words in repayment of loan amount. When complainant demanded for the payment of the loan amount, accused issued a cheque bearing No.796484 dated 3.6.2006 for Rs.2.00 lakhs drawn on Canara Bank, Tumkur Road Branch, Bangalore. The cheque was presented by the

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complainant for collection through his banker Dena Bank, Peenya Branch, Bangalore, but it was dishonoured and returned with an endorsement ‘funds insufficient’ on 15.6.2006. Complainant got issued a legal notice on 11.7.2006. Despite service of notice, payment was not made by the accused. Then complainant has filed a complaint under Section 200 Cr.P.C against the accused for the offence punishable

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under Section 138 of N.I. Act in CC No.31353/2006.

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Accused appeared before the trial court on

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issuance of summons, his plea was recorded, accused pleaded not guilty.

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To prove his case, complainant/V.N.Harish

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got examined himself as PW1 and got marked 13 documents as Exs.P1 to P13. On the other hand, accused/S.Bhaskaran got examined himself as DW1

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and got examined one Dinesh as DW2 and got marked 5 documents as Exs.D1 to D5.

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The trial court considering the oral and

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documentary evidence available on file, acquitted the accused for the offence punishable under Section 138 of N.I. Act. Against which, complainant is in appeal.

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Learned counsel Sri.Pradeep Naik K appearing

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for appellant/complainant submits that the trial court seriously erred in considering the hyper technical aspect and acquitting the accused in the case. He would further submit that the cheque number was wrongly typed in the notice Ex.P5 and in the complaint as well. The learned trial judge concluded that it is malafide and also on the aspect more or less equal to attempt to cheat and dismissed the complaint and acquitted the accused. He would further submit that there was legally recoverable debt and the cheque was issued for repayment of the said loan amount.

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Learned counsel Sri. M.Sharass Chandra,

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appearing for the accused/respondent would submit

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that this is not the first case filed against the accused under Section 200 of Cr.P.C. for the offence

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punishable under Section 138 of N.I.Act.

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Learned counsel would submit that accused is a driver by profession. Earlier he was working as a driver under one C.M.Mohanramareddy who is the father-in-law of one Dinesh who is examined as DW2 in this case in relation to the payment of installments in respect of purchase of a vehicle for getting the benefit of subsidy the cheques were given to the said C.M.Mohanramareddy. But they are misused by the complainant. Another complaint is also filed against the accused by one Dinesh and the present case is filed by one V.N.Harish. Thus, the complainant is making double attack on the accused.

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The features that do not require a dissective

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situation or analysis or issuance of legal notice dated

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11.7.2006 as per Ex.P5 by the complainant is not seriously disputed. Dishonour of cheque bearing No. 796484 for Rs.2.00 lakhs presented by the complainant for collection through his banker is also not disputed.

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The material aspect of cheque and the signature on the cheque is not seriously disputed by the accused. However, the explanation offered by the accused is that he had placed two cheques with one C.M.Mohanramareddy, father–in-law of one Dinesh. The said C.M.Mohanramreddy has son-in-law, by name Dinesh. Now the said C.M.Mohanramreddy is dead. The accused further claims that another case

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was also filed against him by one Dinesh in CC No.31336/2006 as per Ex.D3 on the file of 12^th Additional CJM in respect of a cheque bearing No.796484 for a sum of Rs.2.00 lakh drawn on Canara bank, Tumkur Road Branch, Bangalore. It was in this

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connection, learned counsel Sri. M.Sharass Chandra for accused submitted that there is difference between two cheques and in that connection tampering of the number is effected. Insofar as cheque which is produced at Ex.P1 in the present case is concerned, it is bearing number ‘796485’ and the very last number ‘84’ is over written as ‘85’ in the affidavit filed in lieu of examination-in-chief filed by the complainant. When there is sufficient credit balance in the account of the accused or the person who issues cheque there are certain grounds under which the banker is entitled to dis honour the cheque. In other words, it cannot be called as wrongful dishonour by the banker and to initiate proceedings against him for wrongful dishonour of a cheque. One main ground other than the insufficiency of funds is, material alteration.

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13 . The word ‘alternation’ means variation/

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change in common parlance. It may be addition

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correction and deletion. The word ‘alteration’ gains significance when it becomes material alteration. In any aspects which includes the cheque or bill of exchange or promissory note, the ‘material alteration’ means which affects basic of the instrument. For example, alteration of date in respect of a stale cheque by altering the date to make it now as a valid cheque. Alteration of signature to ensure it is congruent with that of the drawer. Alternation of amount and some other material aspects.

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Apart from that, the Negotiable Instruments Act, provides for inchoate instruments under Section 20 of the said Act which is as under:

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“20. Inchoate stamped instruments.Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in (India), and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified

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therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.”

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Any alteration which does not change the character, the basic nature of right of the complainant or accused, the liability of the accused, responsibility of the banker are not alteration and such alteration is recorded as an imformal and may fall within the grew of Section 20 of the Negotiable Instruments Act. In other words where a fresh right is created, right of the other party is extinguished or fresh obligation is created on the other party such alteration are not allowed in law.

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In the present case, serial number of the cheque in the original cheque Ex.P1 is ‘796485’. But while issuing notice – Ex.P5 the serial number of the

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cheque is stated as ‘796484’. The extraction of the

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relevant para of Ex.P5 is as under:

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“2. My client informs me that, you in repayment of subsisting legal debt, having issued a cheque bearing No.796484, dated 03.06.2006, drawn on CANARA BANK. Tumkur Road Branch, Bangalore, with an instructions to present the same for clearance and to make arrangement for clearance of the same.”

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Thus when the original cheque number is ‘796485’, the cheque claimed in the notice bears serial number ‘796484’ which is totally in correct and there is no second word in it. Same mistake has percolated

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in the complaint also. The relevant para is as under:

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“The complainant submits that the accused on demand for the payment of the afore said sum of Rs.2,00,000/has issued a cheque dated 3.6.2006, bearing No.796484 drawn on Canara Bank, Tumkur Road Branch, Bangalore for a sum of Rs.2,00,000/- with instruction to present the same for clearance, Accordingly the complainant has presented the aforesaid cheque for clearance through his account at Dena Bank, Peenya Branch, Bangalore and the same was returned with shara “Insufficient funds”, through the memo dated 15.6.2006. xxxxx”

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There also the serial number of the cheque

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is shown as ‘796484’. Learned counsel for accused in this connection would submit, it is not only this case there is another case filed by one Dinesh son-in-law of C.M.Mohanramreddy in Criminal Case No.31336/2006

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as against the present accused for the offence punishable under Section 138 of N.I. Act. Incidentally, the cheque number in the said case is ‘796484’ drawn on Canara Bank, Tumkur Road Branch, Bangalore in favour of one Dinesh. The said Dinesh is examined as DW2, but no significant ingredients is shown in the evidence of DW2 and rest is, parties have reiterated their claims and

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contentions.

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It is a common phenomena that whenever the meaning of a statement or term is simple and plain it does not require further interpretation. It is only when high standard of English jumbling or

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bombarding words are used it require interpretation. In this connection, the popular Rules of interpretation are: Literal golden rule and mischief rule. The common statement applicable in all the Rules is any document or proceedings or discussion will have an object and the aim of reading would be further the object and eschew the mischief. Thus, when a pleading, statement, objection, affidavit, judgment and authorized documents will have to be read with reference to context. For example, whenever, a charge memo is issued mentioning different charges and in the concluding line if an available word like honest, good, acceptable are used in favour of addressee, the real meaning of the term may be quite opposite. It so happens even when ironical statements are made in a diverse petition where one spouse makes serious allegations against the other spouse and in the concluding statement if he or she says that

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it is difficult for him or her to leave without other spouse. Very often the term ‘without’ may give a meaning of opposite term of ‘with’. But true meaning has to be ascertained only by reading the entire context. It cannot be a question of picking a bird in the flock and say what is that particular bird and it is not necessary to test all the birds. But reading of a document cannotes that every integral part in context aims at a particular meaning and it is the main meaning of the document which holds the key. In the instant case, the serial number of the cheuqe is mentioned as ‘796485’ instead of ‘796484’.

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It is necessary to mention herein the details of cheque. The date is not altered, so also the name of the payee, amount in the words and figures and the signature of the drawer and there is absolutely no material alteration over the cheque.

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Learned counsel for appellant also drew my

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attention to the fact that a Memo was filed before the trial court on 16.11.2010 regarding the error committed in mentioning the wrong number of the cheque seeking permission to rectify the same, the court on 18-04-2011 ordered that it would be considered at the time of hearing arguments on merits. But the same has not been considered at the time of passing of the judgment. However, the order passed by the trial court on 18/04/2011 is as under:

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“Case called. Accused present. The complainant and his counsel absent. The complainant filed a memo with a prayer to rectify or permit to amend the very number of cheque as 796485 instead of 796484 which wrongly crept in entire proceedings of instant case. It is pertinent to note that the very legal notice is issued where in cheque number shown as 796484. The same would be consider while considering the instant complaint on merits. Hence the said memo is kept open and both the parties are directed to submit their arguments on said memo along with the arguments on main complaint.

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Call on for arguments by 27.04.2011.”

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Incidentally, at the time of disposal of the

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case, trial court has observed that “it appears that complainant has been trying to fill up the lacuna found in the legal notice and very complaint in his evidence. “

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Thus, resorting to hyper technicalities are to be avoided as much as possible. Reading of the document, every part of it must be read with reference to the context which means giving regard to the attendant circumstances. Thus a meaning of the statement or term or word can be properly given only after reading the text of the matter. In this connection there is no proper application of mind on the part of the learned trial judge in making the serial number of the cheque as a big one and material enough to dislodge the case.

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Insofar as complainant is concerned, he is stated to be running a business of transportation and

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there is no material to hold that he is incapable of garnering the source or possessing the amount of Rs.2.00 lakhs.

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In the facts and circumstances of the case, I find the judgment rendered by the learned trial judge is seriously hit by non application of mind, infirmities and placing reliance on unreliable matters and I have no hesitation to set aside the same. Hence, I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The judgment dated 15.7.2011 passed in CC No.31353/2006 by the learned XII Additional CMM, Bangalore, is set aside.

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Consequently, complaint lodged by the complainant is allowed. The accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act and he is sentenced to

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pay a fine of Rs.2,05,000/-. Out of which, Rs.2.00 lakh shall be paid to the complainant as compensation and remaining Rs.5,000/- shall be adjusted to the State account. In default of payment of fine accused shall undergo Simple Imprisonment for six months.

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Office to send back the file to the trial court.

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Sd/JUDGE

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tsn*

Sri v. N Harish S/O.Late Sri Nagaraj v Sri S Bhaskaran S/O.Late Sri B Shivaraj Reddy

Case brief

What is this about?

What did the court decide?

Sri v. N Harish S/O.Late Sri Nagaraj v Sri S Bhaskaran S/O.Late Sri B Shivaraj Reddy

Case brief

What is this about?

What did the court decide?

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