Dismissed

Rajesh Naik v. v Ratnamma

Karnataka HC15 Dec 2021CRL.A/1078/2017

Case brief

AI extract

What is this about?

Appeal by complainant against acquittal of accused on cheque bounce charge. High Court dismissed the appeal, holding that without a bank endorsement proving the cheque was returned unpaid, the cumulative conditions of Section 138 of the N.I. Act were not fulfilled.

What did the court decide?

Criminal Appeal No.1078 of 2017 is dismissed. No cause of action to file complaint under Section 138 N.I. Act.

Rajesh Naik Vs v Ratnamma — Banking and Recovery | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF DECEMBER, 2021

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BEFORE:

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO.1078 OF 2017

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BETWEEN

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RAJESH NAIK AGED ABOUT 37 YEARS S/O MAHADEVA NAIK R/AT NO.669, 23^RD CROSS ROAD KUMARASWAMY LAYOUT, 1^ST STAGE BENGALURU – 560 078

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… APPELLANT

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[BY SRI RAJESH G.S., ADVOCATE SMT. NALINA.K, ADVOCATE APPOINTED AS AMICUS CURIAE V/O DATED 10.12.2021]

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AND

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V. RATNAMMA W/O GANGADHAR RAJ AGED ABOUT 59 YEARS R/AT NO.142, SARAKKI VILLAGE NEAR RAMAMANDIR J.P.NAGAR, 1^ST STAGE, BENGALURU – 560 078

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… RESPONDENT

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[BY SRI A. VIJAY KUMAR BHAT, ADVOCATE]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ACQUITTAL OF THE JUDGMENT DATED 02.05.2017 PASSED BY THE XXIII

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ACMM, BANGALORE IN C.C.NO.15910/2013 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by the complainant against the impugned judgment passed by the trial Court, acquitting accused/respondent for an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I Act’ for short).

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Heard both side and perused the trial Court

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records.

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The specific case of the complainant is that he is a building contractor by profession. Accused had entrusted house alteration work to him and towards labour charges, issued a cheque bearing No.302577 dated 07.12.2012 for a sum of Rs.1,00,000/- drawn on Vijaya Bank, J.C.Road Branch, Bengaluru in favour of complainant, assuring that the said cheque will be honoured on its presentation. He presented the cheque to

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his banker namely Vijaya Bank on 07.12.2012. But the bank officials informed him verbally that there was no sufficient amount in the account of the accused. Once again the complainant went to the bank personally on 09.12.2012 with a letter to honour the cheque, however, there was no response by the bank. This fact was brought to the notice of the accused by issuing a demand notice through RPAD on 31.12.2012. The said notice was returned unserved on 05.01.2013 with a shara “No such person in the address”. Since the amount mentioned in the cheque was not paid even after issuance of legal notice, accused committed an offence punishable under Section 138 of N.I. Act.

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The complainant got himself examined as PW.1 and examined 3 more witnesses and got marked Exs.P1 to P7. The defence got marked Ex.D1.

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The trial Court after considering the oral and documentary evidence on record acquitted the accused, hence this appeal.

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The defence taken by the accused is that the cheque in question was given to one Nalini through the complainant, but complainant without handing over the cheque to Nalini, misused it. The learned counsel appearing for appellant would contend that the accused by cross-examining PW.1 has admitted that the cheque belong to him and even the signature has not been disputed. As such the presumption under Sections 118 and 139 is available to the complainant. It is therefore contended that the trial Court was not justified in acquitting the accused.

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It is relevant to see, according to complainant, on 07.12.2012 he went to the bank and presented the cheque by filling a challan for deposit. But the concerned bank officials verbally informed that there is insufficient funds in the account of accused to pass the cheque. Therefore, the complainant personally approached the accused bank on 19.12.2012 and submitted the cheque particulars in writing and enquired about the balance available in the account of the accused. Since there was no response or reply, he issued a legal notice to the accused

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demanding the amount mentioned in the cheque. Thus, it is clear that the cheque alleged to have been issued by the accused was not dishonoured by the bank with any endorsement. Admittedly, the complainant has not produced the bank endorsement stating that Ex.P1-cheque was dishonoured for any reasons. The trial Court has observed that the endorsement of the bank is not produced and therefore, a presumption arises that the cheque has not been presented for encashment and proviso to Section 138 of N.I Act are not attracted.

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Learned counsel for appellant has contended that there are enough material to show that the cheque was presented to the bank and since there was no sufficient fund in the account of the accused the same was returned.

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The learned trial Court has observed that to prove the said contention, complainant has not called upon the bank authorities to prove that he has presented the cheque and the same was returned or refused. Hence, the

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trial Court was of the view that there was no cause of action which arose to present the complaint.

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Admittedly, the complainant has not produced any bank endorsement to show that the cheque was dishonoured or returned by the bank. Hence as rightly held by the trial Court, the offence under Section 138 N.I Act is not attracted against the accused. There are no grounds to interfere with the findings recorded by the trail Court. Hence, the following

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ORDER

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Appeal is dismissed.

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Learned Amicus Curaie shall be paid a sum of Rs.3,000/- (Rupees Three Thousand only) as honorarium by the High Court Legal Services Committee.

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Sd/JUDGE

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HB/-

Rajesh Naik v. v Ratnamma

Case brief

What is this about?

What did the court decide?

Rajesh Naik v. v Ratnamma

Case brief

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