Dismissed

Sri.S.Govinda Rao, v. Smt.Niramala

Karnataka HC8 Dec 2022CRL.A/100132/2016

Case brief

AI extract

What is this about?

The Criminal Appeal against an acquittal in a cheque bounce case was dismissed. The High Court held that the complainant failed to prove that the mandatory legal notice regarding the dishonoured cheque was sent to the correct address of the accused, thus failing to establish the cause of action. Furthermore, the accused successfully rebutted the presumption of debt.

What did the court decide?

The Criminal Appeal was dismissed and the order of acquittal by the Trial Court was confirmed.

Sri.S.Govinda Rao, Vs Smt.Niramala — Cheque Dishonour | Karnataka HC (2022)

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CRL.A No. 100132 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH CRIMINAL APPEAL NO. 100132 OF 2016 (A)

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BETWEEN:

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SRI.S.GOVINDA RAO, S/O S.VITTAL RAO, AGE: 42 YEARS, OCC: TAILOR, R/O: JAMBUNATH ROAD, HOSAPETE, HOSAPETE TALUK, BALLARI DISTRICT.

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…PETITIONER

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(BY SRI. K. L. PATIL.,ADVOCATE) AND:

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SMT.NIRAMALA W/O. SHIVARAM, AGE: 30 YEARS, OCC: HOTEL BUSINESS, R/O: GLOBAL CITY SCHOOL, NEAR JALAKANTESWARA TEMPLE, RAMAIAH THOUPU, MALESH PALYAL, BENGALURU.

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…RESPONDENT

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(BY SRI.SHARAD M. PATIL., AMICUS CURIAE )

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THIS CRIMINAL APPEAL IS FILED U/SEC.378 (4) OF CR.P.C., PRAYING TO ALLOW THIS APPEAL & TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 16/03/2016 PASSED BY THE LEARNED ADDL. CIVIL JUDGE AND JMFC, HOSPETE IN C.C.NO. 395/2014 CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

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THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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CRL.A No. 100132 of 2016

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JUDGMENT

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This criminal appeal is filed by the complainant being aggrieved by the judgment and order of acquittal dated 16.03.2016 in C.C. No.395/2014 on the file of the learned Additional Civil Judge and JMFC, Hosapete.

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Sri. K. L. Patil, the learned counsel for the appellant submits that, the judgment and order of acquittal passed by the Trial Court is contrary to the facts and the same is liable to be set aside.

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It is further submitted that, the complainant has proved the cheque-Ex.P.1 dated 29.07.2013 issued by the accused. It is further submitted that, the accused has not disputed the issuance of the cheque and the signature on it. Once the cheque is proved, it is deemed that, the holder of the cheque is having the cheque for the legally enforceable debt or liability, unless contrary is proved.

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It is further submitted that, the Trial Court has failed to raise presumption in support of the complainant. Though the complainant has proved the case, and it is an

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CRL.A No. 100132 of 2016

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admitted fact that the cheque was issued to the complainant and the signature is admitted and thereby the initial burden with regard to liability has been proved by the complainant. The Trial Court could have raised the presumption envisaged under Section 139 of the N.I.Act, failing to raise such presumption led the Trial Court to pass the impugned judgment. Therefore, the order of acquittal is liable to be set aside.

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Per contra , Sri. Sharad M. Patil, learned Amicus Curiae justifying the judgment and order of acquittal passed by the Trial Court submits that, the law mandates issuance of the notice to the accused regarding the dishonour of the cheque. When the law says it is mandatory, the complainant should have followed it. Though in this case, the complainant sent notice regarding the dishonour of the cheque, it is sent to Bangalore address and received the shara as ‘want of correct address’. Therefore, the complainant failed to comply the mandatory requirement. Hence, there is no cause of action arise to file a complaint against the accused.

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It is further submitted that the complainant has failed to prove the loan transaction with the accused.

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CRL.A No. 100132 of 2016

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Therefore, the Trial Court has rightly appreciated the evidence and acquitted the accused. Hence, the order of acquittal is not required to be interfered with.

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It is further submitted that the accused took a defence that the brother of the complainant was doing finance business and she had borrowed a sum of Rs.1,75,000/- from him and in lieu of the amount which she has borrowed she had issued a signed blank cheque, signed promissory note and also one unregistered sale deed. The unregistered sale deed is produced before the Court and which is marked as Ex.D2. Such being the fact, the alleged transaction loses its significance.

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Having heard the learned counsel for the parties and perused the documents available on record, the points which arise for my consideration are :-

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i) Whether the judgment and order of acquittal passed by the Trial Court is justified?

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ii) Whether the appellant has made out grounds to interfere with the judgment and order of acquittal passed by the Trial Court in both the cases?

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CRL.A No. 100132 of 2016

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This Court being a First Appellate Court, in order to re-assess the entire evidence on record, it is necessary to rely on the evidence of PW1 and DW1 respectively. PW1 has stated that the accused had borrowed a sum of Rs.4 lakh, on 29.11.2012 to start hotel business and agreed to pay interest @ 24% p.a. and also further stated that, the accused had executed promissory note for the said loan. The said promissory note is marked as Ex.P6. When the accused failed to repay the said amount, when it was demanded, the accused issued a cheque for a sum of Rs.4,64,000/- drawn on ING Vysya Bank, Hospet Branch. When the said cheque was presented for encashment, complainant received shara as ‘account closed’ on 31.07.2013. A notice was sent on 05.08.2013, the same has been returned with endorsement

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“want of correct address’ on 23.08.2013.

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Before adverting to the other facts, it is relevant to refer the law on issuance of notice. Section 138(b) of N.I. Act, which reads thus:-

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CRL.A No. 100132 of 2016

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“138(a) xxx

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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and”

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On careful perusal of the above said provision, makes

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it clear that, the issuance of the notice regarding the dishonour of the cheque is mandatory and it should be sent to the correct address of the drawer or the accused.

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In this case, the complainant has stated that he sent the legal notice to the drawer “Nirmala W/o Shivarama, R/o Global City School, near Jalakanteswara temple, Ramaiah Thopu, Malesh Palya-I, Bangalore. However, the accused has produced documents, namely, Election Identity Card, which is marked as Ex.D1, shows her address as No.208/A, Car Street Left Side, Hampi, Hospet, Bellary-583239. Even Ex.D2 the unregistered sale deed stated to have executed in favour of S.Vinayaka, also indicates that she is the resident of Hampi.

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CRL.A No. 100132 of 2016

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Therefore, the accused has proved that the said notice has not been received by her. The burden of proving that the accused was residing in Bangalore will be shifted to the complainant. In this case, the complainant has not discharged the onus of proving the address of the accused regarding her stay in Bangalore. Hence, the issuance of notice to the correct address of the accused regarding the dishonour of the cheque has not been proved by the complainant

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As regards the loan borrowed by the accused is concerned, she has produced Ex.D2, the unregistered sale deed said to have been executed to the brother of the complainant, where she had borrowed a sum of Rs.1,75,000/- as a loan and she stated that she had cleared the said loan. According to her, the signed blank cheque, promissory note and the unregistered sale deed were given to the brother of the complainant as security. Inspite of the amount having been paid to the brother of the complainant, he has misused the signed blank cheque and given it to the complainant to file a false case.

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On perusal of the evidence of DW1 and also Ex.D2, it appears that the accused has rebutted the presumption and

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CRL.A No. 100132 of 2016

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proved that she has not received money or amount from the complainant or in other words, the complainant has failed to prove the loan transaction between himself and the accused. Be that as it may be, the complainant failed to follow the mandatory provision, i.e. issuance of the legal notice to the correct address of the accused regarding the dishonour of the cheque which is required in terms of Section 138(b)&(c) of the N.I.Act. Therefore, the cause of action to file a complaint could not be survived. Having said thus, the judgment and order of acquittal passed by the Trial Court does not require any interference and the appeal filed by the appellant deserves to be dismissed.

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In view of the observations made above, the points

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which arose for my consideration are answered as:

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i. Point No.1: In the affirmative

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ii. Point No.2: In the negative.

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Hence, I proceed to pass the following:

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ORDER

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a) The Appeals filed by the appellant stands dismissed. b) The judgment and order of acquittal passed by the learned Additional Civil Judge and JMFC,

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CRL.A No. 100132 of 2016

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Hosapete, dated 16.03.2016 in C.C.No.395/2014

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stands confirmed.

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This Court placed appreciation on record the effective assistance rendered by Sri. Sharad M.Patil, learned Amicus Curiae .

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The Karnataka State Legal Services Authority, High Court of Karnataka, Dharwad Bench, Dharwad, is directed to pay the remuneration of Rs.5,000/- to the learned Amicus Curiae .

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Sd/JUDGE

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PJ/ VMB List No.: 1 Sl No.: 10

Sri.S.Govinda Rao, v. Smt.Niramala

Case brief

What is this about?

What did the court decide?

Sri.S.Govinda Rao, v. Smt.Niramala

Case brief

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What did the court decide?

What the court decided

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