Appeal by complainant bank against acquittal in a Section 138 NI Act case. The court found the statutory notice was sent to a wrong address and never served, and no loan records proved a legally recoverable debt; no perversity in the trial court's acquittal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 287 OF 2023 (A)
BETWEEN:
MYSURU DISTRICT WOMEN CO OPERATIVE BANK LIMITED MYSURU CHAMARAJA DOUBLE ROAD, CHAMARAJA MOHALLA, MYSURU, REPRESENTED BY ITS MANAGING DIRECTOR, SMT. SUMA N MAJOR IN AGE.
…APPELLANT
(BY SRI. B S MAHENDRA.,ADVOCATE)
AND:
Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA
SRI. CHANDRASHEKAR R, S/O LATE RUDRAPPA, AGED ABOUT 47 YEARS, R/AT D NO. 40, MIG-2, LAKSHMIKANTHA NAGAR, HEBBALU, MYSURU-17, OFFICE ADDRESS- ASSOCIATE TEACHER, GOVERNMENT LOWER PRIMARY SCHOOL, HALLADAMADAHALLI, GUNDLUPETE TALUK.
…RESPONDENT (BY SRI.VIJAY KUMAR K S.,ADVOCATE) THIS CRL.A FILED U/S 378(4) OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED 03.12.2022 PASSED IN C.C.NO.678/2016 ON THE FILE OF THE PRL.CIVIL JUDGE AND J.M.F.C MYSURU AND ALLOW THE COMPLAINT AS PRAYED FOR WITH COST THROUGHOUT.
THIS CRL.A COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The appellant herein being the complainant in C.C.No.678/2016 on the file of the learned Principal Civil Judge and JMFC, Mysuru is impugning the judgment dated 03.12.2022 acquitting the respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [for short, ' the N.I. Act' ].
referred to as per their rank and status before the Trial Court.
Legal notice was issued which was returned with shara ‘addressee left, hence returned to sender’. The accused had not repaid the cheque amount, thereby he has committed the offence punishable u/s.138 of N.I. Act.
“Whether the impugned judgment of acquittal suffers from perversity or illegality, which calls for interference by this court?”
NC: 2024:KHC:30858 CRL.A No. 287 of 2023
R E A S O N S
per the complaint that it is a co-operative bank that had lent an amount of Rs.1,80,000/- to the accused on 27.07.2015 and as security the cheque bearing No.164968 was issued by the accused when he availed the loan. The said cheque when presented for encashment was dishonoured as there was ‘insufficient funds’. The cheque in question dated 27.01.2016 is marked as Ex.P1. Even according to the complainant the cheque in question was issued on 27.07.2015 as security which was presented for encashment on 27.01.2016. The legal notice as per Ex.P3 came to be issued. Ex.P-5 is postal envelope returned to the sender with the postal endorsement “addressee left, hence returned to sender”. Therefore admittedly the notice was not served on the accused.
mentioned in Ex.P3 is of Hallada Madahalli. There is absolutely no explanation given by the complainant or PW-1 as to why notice was issued to Hallada Madahalli when the accused was working at Bettada Madahalli. Even according to PW-1 it may be a mistake to mention the name of village as Hallada Madahalli instead of addressing it to Bettada Madahalli. Under such circumstances, it cannot be said that there was compliance of requirement u/s.138 of N.I. Act, i.e., service of notice to the accused. Unless it is shown that the legal notice as per law is served upon the accused, it cannot be said that the complainant has made out grounds seeking conviction of the accused.
not producing any material that the amount was due from the accused and also for not serving notice on the accused at the place where he was working. Under such circumstances, the accused is entitled for acquittal.
ORDER
The Criminal Appeal is dismissed.
Sd/- (M G UMA) JUDGE
Snb/
List No.: 2 Sl No.: 10
1 issue framed by the court
Whether the acquittal under Section 138 NI Act suffered from perversity or illegality warranting interference?
3 provisions across 2 enactments
Mysuru District Women Co Operative Bank Limited
Chandrashekar R
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
