Dismissed

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

Karnataka HC28 Nov 2023CRL.A/852/2013

Case brief

AI extract

What is this about?

Criminal Appeal filed by complainant to set aside acquittal in a cheque dishonour case. The High Court found no illegalities in the trial court's observation that the complainant failed to issue the mandatory legal notice to the specific accused under Section 138(b) of the NI Act as a valid notice was issued to the respondent's spouse.

What did the court decide?

The criminal appeal filed under Section 378(4) CrPC is dismissed, and the judgment of acquittal is confirmed.

M/S Makara Jyothi Chits Pvt. Ltd. Vs Mr. Kishore Ronald… — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:42924 CRL.A No. 852 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL APPEAL NO. 852 OF 2013

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BETWEEN:

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M/S MAKARA JYOTHI CHITS PVT.LTD., FIRST FLOOR, ADONI TOWERS, FALINIR, KANKANADY POST, MANGALORE - 575 002, REPRESENTD BY ITS MANAGING DIRECTOR, MR. SURESH RAI.

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…APPELLANT

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(BY SMT. SANJANA S JAIN, ADVOCATE FOR SRI. K. SHASHIKANTH PRASAD, ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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MR. KISHORE RONALD REBELLO, S/O MR. FRANCIS REBELLO, LOVELY COTTAGE, BEHIND KANNUR TELEPHONE EXCHANGE, KANNUR POST, MANGALORE - 574 193.

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…RESPONDENT (RESPONDENT SERVED, UNREPRESENTED) THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:10.07.2013 PASSED BY THE JMFC (V COURT), MANGALORE IN C.C.NO.168/2011 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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NC: 2023:KHC:42924 CRL.A No. 852 of 2013

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

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JUDGMENT

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The complainant/appellant has preferred this appeal against the judgment of acquittal passed by the JMFC Court, Mangalore, in CC.No.168/2011 dated 10.07.2013, (for short hereinafter referred to as "trial Court").

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

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The facts of the complaint is that the complaint was registered under Chit Fund Act 1982. The accused joined as a member of the Chit fund under Group No.GRJ 4 and obtained Ticket No.27, 28, 29, 36 and 50. Chit amount was Rs.5,00,000/-. The said group commenced on 05.10.2006 with a monthly installment for each ticket is at Rs.10,000/-. That on 05.03.2007 accused participated in the Chit Fund action and withdrawn Ticket No.27 for the bid amount of Rs.2,00,000/and received a sum of Rs.3,00,000/- by cheque No.535351 dated 23.02.2007 drawn on Vijaya Bank, Falnir Branch, Mangalore and kept a sum of Rs.1,90,800/- as installment dues

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3 - NC: 2023:KHC:42924 CRL.A No. 852 of 2013

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to the complainant for the said ticket No.27. Further, it is stated that on 05.04.2007 accused participated in the Chit Fund action and withdrawn the ticket No.28 for the bid amount for Rs.2,00,000/- and received a sum of Rs.3,00,000/- through cheque No.987253 dated 21.04.2007 drawn on Karur Vysya Bank, Mangalore branch and kept a sum of Rs.1,74,000/- as installment dues to the complainant for the ticket No.28. Further, it is stated that the accused on 05.07.2007 participated in Chit Fund action and withdrawn ticket No.29 for the bid amount of Rs.2,00,00/- and received a sum of Rs.3,00,000/- as prize money through cheque No.990014 dated 21.07.2007 drawn on Karur Vysya Bank, Mangalore. The accused kept a sum of Rs.1,60,000/- as installment dues to the complainant in the above ticket No.29. Further, it is stated that accused on 05.07.2008, participated in the Chit Fund action and withdrawn ticket No.38 for the bid amount of Rs.1,65,200/- and received a sum of Rs.3,34,800/- as prize money by cheque No.000345 and 000346 dated 22.07.2008 drawn on Karur Vysya Bank, Mangalore Branch, Mangalore. The accused kept a sum of Rs.1,80,000/- as installment dues to the complainant in the ticket No.36. Further, it is stated that the

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NC: 2023:KHC:42924 CRL.A No. 852 of 2013

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accused on 05.11.2008 participated in the Chit Fund action and withdrawn ticket No.50 for the bid amount of Rs.1,23,900/and received a sum of Rs.3,76,100/- as prize money by cheque Nos.005885 and 005886 dated 22.11.2008 drawn on Karur Vysya Bank, Mangalore Branch, Mangalore. The accused kept a sum of Rs.1,80,600/- as installment dues to the complainant in the ticket No.50. Further, it is stated that at the time of receipt of the prize amount the accused executed demand promissory note with two sureties. In total the accused had dues for a sum of Rs.8,81,600/- to the complainant to the ticket Nos.27, 28, 29, 36 and 50. The accused issued a cheque to discharge his liability on 28.01.2010 bearing cheque No.073811 a sum of Rs.8,81,600/- drawn on Union Bank of India, Padavu Maroli Branch, Mangalore, the same was presented for encashment through complainant banker at Karur Vysya Bank, Karangalpady, Mangalore branch. The said cheque returned unpaid for the reasons 'funds insufficient' on 27.01.2010 and thereafter, the complainant got issued demand notice to the accused on 16.02.2010, which was duly served on 18.02.2010. Inspite of that the accused has not complied the notice. Hence, the complainant has filed a complaint. After taking cognizance

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5 - NC: 2023:KHC:42924 CRL.A No. 852 of 2013

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the trial Court has registered case No.168/2011, summons was issued to the accused in person of summons and accused appeared before the trial Court. Substance of plea was recorded accused pleaded guilty and claimed to be tried.

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To prove the guilt of the accused he himself examined as PW1, 24 documents were marked as Ex.P1 to P24. On closure of compliant side evidence statement under Section 313 of Cr.P.C was recorded. Accused has totally denied the evidence of PW1, but he did not lead any defence evidence on his behalf. On hearing the arguments the trial Court has passed the impugned judgment of acquittal. Being aggrieved by this impugned judgment of acquittal, the appellant has preferred this appeal.

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Learned counsel appearing on behalf of the appellant has submitted his argument that trial Court has not properly appreciated the evidence on record in accordance with law and facts. It is further stated that at the time of filing the complaint, the notice issued to the accused was not produced and the complainant has produced a wrong notice which is marked as Ex.P3. On all these grounds sought to remand the

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6 - NC: 2023:KHC:42924 CRL.A No. 852 of 2013

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matter to the trial Court to conduct fresh trial and grant permission to produce the correct legal notice in place of notice already produced and marked as Ex.P3 in CC.No.158/2020.

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Notice duly served to the respondent and remained

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unrepresented. Hence, argument on behalf of the respondent is taken as NIL.

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Having heard the arguments and perusal of records,

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the following points would arise for the consideration:

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1. Whether the appellant/complainant has made out a ground to remand the matter to the trial Court for disposal in accordance with law.

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1. What order?

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My answer to the above points are as under:

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Point No.(1) : Negative,

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

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I have carefully examined the materials and placed

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before this Court. To prove the guilt of the accused PW1 has examined as Ex.P1 and he has re-altered the averments made in the complaint and produced the documents as Ex.P1 which

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reveals that the accused has issued a cheque by name Kishore Ronald Rebello S/o. Francis Robello has issued a cheque in favour of the complainant M/s.Makara Jyothi Chits Pvt. Ltd., for a sum of Rs.8,81,600/- dated 23.01.2010. The same was presented to the bank and bank has issued an endorsement on 27.01.2010 with an endorsement 'funds insufficient'. Ex.P3 is the legal notice issued to one Mrs. Diana Rebello W/o. Kishore Ronald Rebello. The complainant has not issued the legal notice to the accused as required under Section 138(b) of the Negotiable Instruments Act, 1881. In this regard the trial Court has observed in para Nos.21 and 22 which reads as hereunder:

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"21. The complainant contended in the complaint and he deposed that, the cheque was presented by encashment at his Karur Vysya Bank and it was returned unpaid for the reason 'funds insufficient' issued memo on 27.01.2010 and issued legal notice demanding to pay the cheque amount on 16.2.2010 and accused received the notice on 18.2.2010. In spite of that he has not repaid the amount. Ex.P1 is the cheque, Ex.P2 is the return memo, Ex.P3 is the demand notice. The complainant not produced demand notice issued to the accused on 16.2.2010. The Ex.P3 is the legal notice issued to one Mrs.Diana Rebello. In the cross examination of PW1 he deposed that except Ex.P3 no other legal notice was issued to accused. The PW1 specifically admitting that Ex.P3 itself is giving demand notice to the

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8 - NC: 2023:KHC:42924 CRL.A No. 852 of 2013

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accused. Ex.P3 the legal notice issued to one Smt. Diana Rebello and not to the accused.

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22. As per Ex.P3 demand notice and admission of complainant clearly shows that the complainant not issued legal notice demanding to repayment of the cheque amount after dishonour of the cheque. When the demand was not made to the acused as per Sec.138(b) of N.I.Act, it cannot be said to be the offence was committed. When the mandatory requirements are not complied by the complainant the offence was not constituted. The Ex.P2 is the return memo having a prima facie evidence when the demand was not made, the presumption available U/Sec.118 and 139 of the N.I Act cannot be raised in favour of complainant. When the complainant fails to fulfill the mandatory requirements as provided U/Sec.138(b). No more discussion is required on Ex.P5 to P24 and accused cannot be punishable U/Sec.138 of N.I Act. The complainant completely failed to prove beyond all reasonable doubts that accused had committed offence U/Sec.118 of N.I Act."

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On re-examination/re-appreciation and re-

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

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ORDER

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The appeal is dismissed .

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9 - NC: 2023:KHC:42924 CRL.A No. 852 of 2013

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The judgment of acquittal passed in CC.No.168/2011 dated 10.07.2013, on the file of JMFC Court, Mangalore, is confirmed.

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Registry is directed to send a copy of this judgment along with the trial court records to the concerned trial Court for

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taking necessary action.

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Sd/JUDGE

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PK CT:SNN

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

Case brief

What is this about?

What did the court decide?

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

Case brief

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What did the court decide?

What the court decided

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