Remanded

Smt. Sophia Nazarath v. Arun Kumar

Karnataka HC6 Nov 2024CRL.A/503/2020

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against an order of acquittal under Section 138 of the N.I. Act. The court set aside the acquittal and remanded the matter to the trial court to consider evidence regarding the loan transaction and service of legal notice, while rejecting an interim application for additional documentary evidence.

What did the court decide?

The appeal has been allowed; the acquittal judgment is set aside; and the matter is remanded to the trial court for fresh consideration and disposal.

Smt. Sophia Nazarath Vs Arun Kumar — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:44607 CRL.A No. 503 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO.503 OF 2020

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BETWEEN:

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SMT. SOPHIA NAZARATH W/O. LEO NAZARATH AGED ABOUT 47 YEARS RESIDENT OF HOSANNA VILLA PERMUDE POST, VIA BAJPE, MANGALURU-574 509 D. K. DISTRICT.

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…APPELLANT

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(BY SRI ANIKETH K. V., ADVOCATE, FOR SRI SACHIN B. S.)

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AND:

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Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: HIGH COURT OF KARNATAKA

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ARUN KUMAR AGED ABOUT 31 YEARS S/O. RAJU POOJARY PLANT OPERATOR OMPL LTD. ID NO.3243, PERMUDE, MANGALURU-574 509 RESIDENT AT NO.11-1 (11) NADUGODU VILLAGE KONDEMOOLA GRAMAPANCHAYATH KINNIGOLI, KATEEL POST, MANGALURU TALUK D. K. DISTRICT-574 509.

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…RESPONDENT

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(BY SMT. NEERAJA KARANTH, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED 27.12.2019 PASSED BY THE COURT OF J.M.F.C., (IX COURT) MANGALURU, D. K., IN CRIMINAL CASE NO.1226 OF 2018, ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE N.I. ACT.

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THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2024:KHC:44607 CRL.A No. 503 of 2020

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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The complainant in Criminal Case No.1226 of 2018 on the file of the learned Judicial Magistrate First Class, (IX Court), Mangaluru, D.K., is impugning the judgment dated 27.12.2019 acquitting the respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act').

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For the sake of convenience, the parties shall be referred to as per their ranks and status before the trial Court.

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Brief facts of the case are that, the complainant

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has filed the private complaint in P.C.R. No.272 of 2018 before the trial Court against the accused alleging commission of the offence punishable under Section 138 of the N.I. Act. It is contended by the complainant that she knew the accused since several years and had lent an amount Rs.4 lakh. Towards discharge of the said loan, the

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NC: 2024:KHC:44607 CRL.A No. 503 of 2020

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accused had issued the cheque for Rs.4 lakh dated 15.03.2018. When the cheque was presented for encashment, the same was dishonoured as there was 'insufficient funds' . Legal notice was issued notifying the same and calling upon the accused to repay the cheque amount. The notice was returned unserved as the accused was 'out of station' . The accused has not repaid the cheque amount and thereby, he has committed the offence punishable under Section 138 of the N.I. Act. Hence, the complainant requested the trial Court to take cognizance of the offence and to initiate legal action.

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The trial Court took cognizance of the offence and registered Criminal Case No.1226 of 2018. The accused was summoned to appear before the trial Court. The accused appeared before the trial Court, pleaded not guilty and claimed to be tried. The complainant, in order to prove her contention, examined herself as PW1 and got marked Exs.P1 to P4. The accused has denied all the incriminating materials on record, but has not led any

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evidence in support of his defence. The trial Court, after taking into consideration all these materials on record, came to the conclusion that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, the accused was acquitted. Being aggrieved by the same, the complainant is before this Court.

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Heard Sri Aniketh K.V., learned counsel for the appellant and Smt. Neeraja Karanth, learned counsel for respondent. Perused the materials including the Trial Court records.

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Learned counsel appearing for the

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appellant/complainant contended that the complaint came to filed specifically stating that a sum of Rs.4 lakh was lent in favour of the accused. Even though the date on which the amount was lent is not stated in the complaint, it was elicited during cross-examination of PW1 that an amount of Rs.2,30,000/was paid through cheque during December-2014 and cash of Rs.1,70,000/- was paid

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during October-2015. Thus, an amount of Rs.4 lakh was paid. Learned counsel submitted that I.A. No.2 of 2020 is filed by the appellant seeking permission to produce additional documents i.e., copy of the cheque for Rs.2,30,000/- dated 09.12.2014, along with the Bank Statement, however, the Bank Statement was not pertaining to the complainant and by mistake, the statement of the brother of the complainant was produced.

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Learned counsel contended that even though the

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legal notice was returned unserved as the accused was 'out of station' , it is a deemed service as per Section 27 of General Clauses Act, 1897. In spite of that, the accused had not replied nor repaid the cheque amount. She has not stepped into the witness box to depose regarding his defence. The complainant is successful in proving the guilt of the accused beyond reasonable doubt. In spite of that, the trial Court proceeded to pass the impugned judgment acquitting the accused solely on the ground that PW1

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during her cross-examination stated that the accused had paid Rs.50,000/-, which in fact was with reference to a different transaction and not pertaining to the present loan transaction. Thus, the trial Court has committed an error in acquitting the accused and prays for allowing the appeal.

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Learned counsel further submitted that I.A. No.2 of 2020 is filed for production of additional documents. The first document is the copy of cheque for Rs.2,30,000/dated 09.12.2014. Even though it was a self-cheque for Rs.2,30,000/-, the signature of the accused is found on the backside of the cheque . Prima-facie , it discloses that it was encashed by the accused which supports the contention of the complainant. There was no reason to ignore this material piece of evidence. Hence, he prays for allowing I.A. No.2 of 2020.

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Learned counsel has placed reliance on the decision of a Co-ordinate Bench of this Court in the case of

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C. NIRANJAN YADAV v. D. RAVI KUMAR¹ and also the

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decision of the Hon'ble Apex Court in C.C. ALAVI HAJI v.

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PALAPETTY MUHAMMED AND ANOTHER² , in support of his contention that Section 27 of the General Clauses Act, 1897, gives rise to a presumption regarding service of notice when the same is sent to the correct address by Registered Post. Even if the same is returned with the postal endorsement either 'refused' or 'not available in the house ' or 'house is locked ' or 'shop is closed ' or 'addressee is not in station ', service is to be presumed. Relying on these decisions, learned counsel submitted that it is not the requirement of law for complainant to plead that the accused has deliberately avoided service of notice by returning notice as he is ' out of station' . When such legal presumption is in favour of the complainant, the service of notice cannot be disputed.

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1 CRL.R.P. No.814/2021 Disposed Date 24.06.2024

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2 (2007) 6 SCC 555

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Learned counsel further submitted that even though PW1 is cross-examined at length by the learned counsel for the accused, service of notice is never disputed. Under such circumstances, it has to be held that the notice was served on the accused. Accordingly, he prays for allowing the appeal.

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Per contra , learned counsel for the

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respondent/accused submitted that the legal notice was never served on the accused. Therefore, the complaint is liable to be dismissed in limine . Even though the complainant stated that he had lent an amount of Rs.4 lakh, he has not stated on which date, he has lent the

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amount. Admittedly, there was no document produced in evidence during the trial. During cross-examination, the complainant has stated that he had lent an amount of Rs.2,30,000/- by way of cheque during December-2014,

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but nothing has been placed on record to support the said contention. The contention of the complainant that a sum

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of Rs.1,70,000/- was paid through cash during October2015 is also not proved.

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Learned counsel submitted that even though I.A. No.2 of 2020 is filed to produce the cheque, the said cheque is for a sum of Rs.2,30,000/- and it is a selfcheque. But it was not issued in favour of the accused and the Bank Statement is not pertaining to the complainant and therefore, the same is not helpful to the complainant. The complainant has not shown any reasons as to why the said documents were not produced before the trial Court. Under such circumstances, even I.A. No.2 of 2020 is liable to be dismissed.

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Learned counsel further submitted that in the cross-examination, the witness categorically stated that one Gabrial, was present when the complainant lent the amount to the accused. But the said person is not examined before the trial Court. Therefore, the trial Court was right in acquitting the accused and there are no

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reasons to interfere with the impugned judgment of acquittal and hence, prays for dismissal of the appeal.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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I. Whether the impugned judgment of acquittal passed by the trial Court suffers from perversity or illegality and calls for interference by this Court?"

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II. Whether I.A. No.2 of 2020 is liable to allowed?

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My answer to the above point No.1 in the 'Affirmative' and point No.2 in the 'Negative' for the following reasons:

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REASONS

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It is the contention of the complainant that the accused had availed loan of Rs.4,00,000/- and towards discharge of the said loan amount, he had issued the cheque for the said amount which is dated 15.03.2018. The cheque, on presentation, was dishonoured as there

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NC: 2024:KHC:44607 CRL.A No. 503 of 2020

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was ' insufficient funds ' in the account of the accused. In spite of service of legal notice, the cheque amount was not repaid and thereby, the accused committed the offence punishable under Section 138 of the N.I. Act.

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To prove her contention, the complainant examined herself as PW1 and got marked Exs.P1 to P4. The accused has denied all the incriminating materials available on record, but has not led any evidence in support of his defence. The trial Court dismissed the complaint by holding that the complainant has not proved lending of the amount.

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Now, it is the contention of the learned counsel for the complainant that out of the loan amount of Rs.4,00,000/-, an amount of Rs.2,30,000/- was lent through cheque which was received by the accused and encashed it. To evidence the same, he has produced a copy of the cheque to contend that the said cheque bears

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the signature of the accused on the backside and it evidence the encashment of the self cheque by the

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accused. However, this fact is disputed by the learned counsel for the accused. Since the accused has not stepped into the witness box to speak about his defence, I am of the opinion that the complainant had no opportunity to cross-examine the accused and to substantiate his contention regarding lending of the amount. Therefore, I deem it appropriate to remand the matter to the trial Court to enable the complainant to prove lending of the amount to the accused by leading additional evidence.

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It is made clear that since the complainant has produced only the copy of the cheque to prove her contention regarding lending of the amount, the application in I.A.No.2 of 2020 is liable to be rejected. But, he is at liberty to summon the original cheque from the Bank concerned in support of her contention. Both the complainant and the accused are at liberty to produce additional documents and lead further evidence in support of their respective contentions. The trial Court is directed to consider such additional evidence and to dispose of the

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case in accordance with law, expeditiously with the assistance of both the parties.

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It is made clear that, this Court has not expressed any opinion regarding sufficiency of service of legal notice on the accused or otherwise, even though the learned counsel for the complainant has placed reliance on the decision of the Hon'ble Apex Court in C.C. Alavi Haji's case (Supra). The trial Court is directed to consider the contentions of both the parties afresh and decide the matter in accordance with law.

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Accordingly, I answer point No.1 in the affirmative and point No.2 in the negative and I proceed to pass the following:

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O R D E R

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i. Appeal is allowed .

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ii. Impugned judgment of acquittal dated 27-12-2019 passed in Criminal Case No.1226 of 2018 by the learned Judicial Magistrate First Class (IX Court),

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NC: 2024:KHC:44607 CRL.A No. 503 of 2020

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Mangaluru, D.K., is set aside. Matter is remanded back to the trial Court for fresh consideration and disposal in accordance with law expeditiously with the assistance of both the parties.

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iii. The complainant and the accused are at liberty to lead additional evidence, as observed above, and

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iv. The complainant and the accused are directed to appear before the trial Court on 25.11.2024 without waiting for fresh notice.

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In view of disposal of the appeal, I.A. No.2 of 2020 shall stand disposed of.

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Registry is directed to send back the trial Court records along with copy of this order.

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Sd/(M G UMA) JUDGE

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JJ/BVN/KVK List No.: 2 Sl No.: 20

Smt. Sophia Nazarath v. Arun Kumar

Case brief

What is this about?

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Smt. Sophia Nazarath v. Arun Kumar

Case brief

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