Dismissed

Mr B Bhagat Ram v. Harischandra Thamankar

Karnataka HC28 Nov 2023CRL.A/382/2014

Case brief

AI extract

What is this about?

In an appeal against acquittal under the Negotiable Instruments Act for cheque dishonour, the High Court dismissed the complaint due to failure to file within 45 days of notice service. The court upheld the acquittal, confirming the lower court's finding that the complaint was barred by time as the first notice was served earlier than alleged.

What did the court decide?

The appeal against acquittal was dismissed, and the judgment of acquittal passed by the trial court was confirmed along with the penalty.

Mr B Bhagat Ram Vs Harischandra Thamankar — Cheque Dishonour | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 28^TH DAY OF NOVEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 382 OF 2014

¶6

BETWEEN:

¶7

MR. B. BHAGAT RAM, S/O B. SUBRAMANYA, AGED ABOUT 36 YEARS, KANYADI HOUSE, DHARMASTHALA VILLAGE & P.O BELTHANGAY TALUK.

¶8

…APPELLANT

¶9

(BY SRI. N SUKUMAR JAIN, ADVOCATE)

¶10

AND:

¶11

Digitally signed by SANDHYA S Location: High Court of Karnataka

¶12

HARISCHANDRA THAMANKAR, AGED ABOUT 48 YEARS, S/O LATE U.MAHADEVA THAMANKAR, ULPE BANADA THOTA HOUSE, PILLYA VILLAGE AND POST, BELTHANGADY TQ - 574 214.

¶13

…RESPONDENT

¶14

(BY SRI. A. KESHAVA BHAT, ADVOCATE)

¶15

THIS CRL.A. IS FILED U/S.378 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:30.12.13 PASSED BY THE PRL.CIVIL JUDGE AND JMFC, BELTHANGADY, D.K., IN C.C.NO.139/2007 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

¶16

¶17

NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶18

THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶19

JUDGMENT

¶20

The appellant/complainant has preferred this appeal against the judgment of acquittal passed by the Principal Civil Judge and JMFC, Belthangady, Dakshina Kannada, in CC.No.139/2007 dated 30.12.2013, (for short hereinafter referred to as "trial Court").

¶21

The rank of the parties in this appeal are referred to as per their status before the trial Court.

¶22

The brief facts of the complainant is that the accused has issued a cheque for Rs.4,90,000/- to the complainant drawn on Teacher's Co-operative Bank Ltd., Belthangady Branch, wherein cheque No.426021 dated 06.05.2005 for discharge of his liability, the same was presented by the complainant for encashment on the same day, which was returned with shara on 09.05.2005 that 'insufficient funds'. Subsequently, complainant has issued a registered notice dated 31.05.2005 calling upon the accused to pay the cheque amount, the same was served on 04.06.2005.

¶23

3 - NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶24

Thereafter, the accused approached the complainant several times for settlement, but the accused did not pay the cheque amount. Hence, the complainant has lodged a complaint on 12.07.2005.

¶25

The trial Court has taken cognizance against the accused for the alleged commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and the case was registered in CC.No.139/2007 and the summons was issued to the accused. In pursuance of summons accused appeared before the Court and enlarged on bail. The substance of acquisition was recorded, accused pleaded not guilty and claim to be tried.

¶26

To prove the case of the complainant, the complainant himself was examined as PW1 got marked 05 documents were marked as Ex.P1 to Ex.P5. On closure of complaint side evidence statement under Section 313 of Cr.P.C was recorded. Accused has denied the evidence of PW1 but he has adduced the evidence of DW1 and DW2 and 19 documents

¶27

were marked as Ex.P1 to Ex.P19. On hearing the arguments on both side the trial Court has acquitted the accused.

¶28

¶29

NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶30

Being aggrieved by the judgment of acquittal the

¶31

appellant/complainant has preferred this appeal.

¶32

Learned counsel appearing on behalf of the appellant has submitted his argument that the impugned judgment is contrary to law and material on record. The trial Court has exercised the jurisdiction wrongly and dismissed the complaint by acquitting it. The trial Court failed that the accused has admitted his signature in the cheque in question. The trial Judge has failed to appreciate that appellant has complied the mandatory requirements of Section 138 of the Negotiable Instruments Act, 1881. Further, it is submitted that the complainant has issued a notice on 10.05.2005 as per Ex.D18 but the acknowledgment was not returned to the complainant. Hence, the complainant has issued a second notice as per Ex.P3 on 31.05.2005, the same was bonafied. If the matter is remanded back to the trial Court, the complainant will file application under Section 142(b) of the Negotiable Instruments Act, 1881 to condone the delay in filing the complaint. On all these grounds sought for to allow the appeal. To substantiate his argument he relied on the decision of

¶33

PAWAN KUMAR RALLI Vs. MANINDER SINGH NARULA

¶34

5 - NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶35

reported in (2014) 15 SCC 245 . As against this the learned counsel for the respondent has submitted his arguments that the trial Court has properly appreciated the evidence on record in accordance with law and facts. That there are no grounds to interfere with the impugned judgment of acquittal. On all these grounds sought for dismissal of this appeal.

¶36

Having heard the arguments on both sides and

¶37

perusal of records, the following points would arise for the consideration:

¶38

1. Whether the complainant/appellant has made out a ground to interfere in this appeal?

¶39

What order?

¶40

My answer to the above points are as under:

¶41

Point No.(1) : Negative ,

¶42

Point No.(2) : As per final order.

¶43

I have carefully examined the materials before this Court, that the accused has issued a cheque for Rs.4,90,000/to the complainant drawn on Teacher's Co-operative Bank Ltd.,

¶44

Belthangady Branch, wherein cheque No.426021 dated 06.05.2005 for discharge of his liability, the same was

¶45

6 - NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶46

presented by the complainant for encashment on the same day, which was returned with shara on 09.05.2005 that 'insufficient funds'. To prove the case of the complainant the complainant himself examined as PW1 and 05 documents were marked as Ex.P1 to Ex.P5. The accused/respondent has produced the copy of the notice issued by the complainant on 10.05.2005, the same is not disputed by the other side. But the complainant has not disclosed the first notice dated 10.05.2005 issued to the accused as per Ex.D18. Even in the sworn statement and in the evidence of PW1 he has not disclosed the same. When the accused has produced his document before the Court the same was not disputed by the complainant. The complainant has not assigned any reason for non-production of Ex.P18 before this Court. At the time of filing the complaint or at the time of trial, the complainant has suppressed these facts and filed the complaint stating that he has issued a notice on 31.05.2005. It is the case of the respondent that the notice issued on 10.05.2005 was served to the accused on 14.05.2005. The complainant has presented his complaint on 12.07.2005. After lapse of 45 days from the date of service of notice dated 10.05.2005 as per Ex.D18, the complainant has

¶47

7 - NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶48

filed a complaint which is barred by time. The complainant has not filed application under Section 142(b) of the Negotiable Instruments Act, 1881 when he came to know the fact as to the issuance of notice dated 10.05.2005 as per Ex.D18. After lapse of about 10 years now the learned counsel appearing on behalf of the appellant has submitted his arguments. If the Court has remanded the case to the trial Court, the complainant filed application under Section 142 (b) of the Negotiable Instruments Act, 1881, which is not permissible under law. In this regard the trial Court has properly appreciated the evidence on record in para No.23 which reads as hereunder:

¶49

"23. It is pertinent to note that Ex.D18 is the copy of legal notice issued to accused dated 10.05.2005 and the same is not disputed by the complainant, because the notice was issued by learned Advocate appearing on behalf of the complainant. The complainant himself produced Ex.P15 postal acknowledgment to show that the Ex.D18 notice was served on the accused on 14.05.2005, but the learned advocate for complainant no where stated about the issuance of earlier notice to accused on 10.05.2005. It is pertinent to note that along with the complaint the learned advocate for complainant produced Ex.P3 notice which was dated 13.05.2005 issued to the accused calling upon for payment of amount due under the dishonoured cheque i.e. Ex.P1 and Ex.P4 is the endorsement which clearly shows that Ex.P3 is served on accused on 04.06.2005. No where

¶50

8 - NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶51

the complainant had explained why he has issued dual notice to the accused. As per law the complainant should have file the complainant within 45 days after receipt of Ex.D18 notice i.e. within 45 days from the date of service of notice dated 10.05.2005, because the date of service is clearly mentioned in Ex.P15 that it was duly served on 14.05.2005 and the complaint could have filed within 29.06.2005. But the present complaint was filed on 12.07.2005 which shows that the complaint is not filed within time and the cause of action shown in the present complaint is based on subsequent notice dated 31.05.2005. As such, the complaint based on subsequent notice is not maintainable. Hence, I answer point No.4 in the Negative."

¶52

On re-examination/re-appreciation and re-

¶53

consideration of the entire evidence on record, I do not find any illegalities/infirmities in the impugned judgment of acquittal. Hence, I answer point No.1 in negative, point No.2 for the aforesaid reasons and discussions. I proceed to pass the following:

¶54

ORDER

¶55

The appeal is dismissed .

¶56

The judgment of acquittal passed in CC.No.139/2007 dated 30.12.2013, on the file of Principal Civil Judge and JMFC, Belthangady, Dakshina Kannada, is confirmed.

¶57

9 - NC: 2023:KHC:42926 CRL.A No. 382 of 2014

¶58

Registry is directed to send a copy of

¶59

this judgment along with the trial court

¶60

records to the concerned trial Court for

¶61

taking necessary action.

¶62

Sd/JUDGE

¶63

PK CT:SNN

Mr B Bhagat Ram v. Harischandra Thamankar

Case brief

What is this about?

What did the court decide?

Mr B Bhagat Ram v. Harischandra Thamankar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri N P Ravish Vs Smt K N Annapurna

M/S.Dsv Air and Sea Pvt. Ltd. Vs Sri Rajan

Sri Ganapathi Vs Sri H.P. Shama Rao

Hanumanthe Gowda Vs M/S Srini Hatcheries and Agro Products

M/S Makara Jyothi Chits Pvt. Ltd. Vs Mr. Kishore Ronald Rebello

Sri Ramesh Vs Smt Nagarathna