Partly allowed

Sri.Guruganesh Chits Private Limited v. Sri.S.L.Suresh

Karnataka HC13 Sept 2024CRL.A/93/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal and set aside the trial court's judgment acquitting the accused in a cheque bounce case. The court held that the trial court erred in raising a new point regarding the maintainability of the complaint and the authority of the complainant's representative, which was not raised by the defence. The matter is remanded to decide on merits after a fresh hea

What did the court decide?

Appeal allowed; Impugned judgment dated 01.12.2022 set aside; Matter remanded to trial court to be disposed of on merits after a fresh hearing to both parties.

Sri.Guruganesh Chits Private Limited Vs Sri.S.L.Suresh — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:37785 CRL.A No. 93 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 93 OF 2023 (A)

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BETWEEN:

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SRI. GURUGANESH CHITS PRIVATE LIMITED, OFFICE AT T. NANJAPPA COMPLEX, 1^ST FLOOR, SUBASH CIRCLE, PETE MAIN ROAD, HOLENARSIPURA TOWN, HASSAN DISTRICT - 573 211 REP BY ITS MANAGING DIRECTOR, SRI. H.V. SURESH KUMAR

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Digitally signed by SWAPNA V Location: high court of karnataka

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(BY SRI. K.N. NITISH, ADVOCATE)

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AND:

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…APPELLANT

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SRI. S.L. SURESH, S/O. S.T. LAKSHMEGOWDA, AGED ABOUT 34 YEARS, R/AT: SANKANAHALI VILLAGE, DODABYAGATHAVALLI POST, HOLENARASIPURA TALUK HASSAN DISTRICT - 573 211

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…RESPONDENT

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(BY SRI. MANJUNATH B, ADVOCATE)

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THIS CRL.A IS FILED U/S 378(4) CR.PC PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE ORDER DATED 01.12.2022 PASSED BY THE LEARNED CIVIL JUDGE AND J.M.F.C HOLENARSIPURA IN C.C.NO.221/2018.

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THIS CRL.A, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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NC: 2024:KHC:37785 CRL.A No. 93 of 2023

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ORAL JUDGMENT

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The complainant in CC No.221/2018 on the file of the learned Civil Judge and JMFC, Holenarsipura, is impugning the judgment dated 01.12.2022 dismissing the case and acquitting the accused for the offence punishable under Section 138 of Negotiable Instrument Act (for short 'the NI Act').

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For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial court.

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Brief facts of the case that, the complainant Sri. Guruganesh Chits Private Limited represented by its Managing Director filed the private complaint in PCR No.139/2018 against the accused alleging commission of offence punishable under Section 138 of NI Act. It is the contention of the complainant that it is running the chit business and one S.N.Lokesh, the brother of the accused is one of the members of the chit group who had taken the chit amount Rs.1 lakh which he supposed to repay in 25 equal installments. The accused being the brother stood as surety for repayment of the said chit amount. The said Lokesh had repaid only six installments and thereafter, he became defaulter and

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NC: 2024:KHC:37785 CRL.A No. 93 of 2023

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an amount of Rs.76,000/- was due from the member to be paid for which, the accused was surety. The accused had issued the cheque for Rs.1,18,180/- i.e., including the penalty of Rs.42,180/-. When the cheque was presented for encashment, the same was dishonored as there was insufficient fund in the account of the accused. Inspite of issuance of legal notice, the accused had not repaid the cheque amount and thereby he has committed the offence punishable under Section 138 of NI Act. and claimed to be tried. Accordingly, he prayed the Trial Court to take cognizance of the offence and to initiate legal action against the accused.

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The Trial Court took cognizance of the offence and summoned the accused. The accused appeared before the Trial Court and pleaded not guilty. The complainant examined PW1 and got marked Exs.P.1 to 11 in support of his contention. The accused has denied all the incriminating materials available on record in his statement under Section 313 of Cr.P.C but has not chosen to lead any evidence in his defence. The trial Court formulated a point regarding maintainability of the complaint and formed an opinion that the appeal is not maintainable since PW1 has not produced any document authorizing him to file

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NC: 2024:KHC:37785 CRL.A No. 93 of 2023

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and dismiss the complaint. Being aggrieved by the same, the

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appellant is before this Court.

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Heard Sri. K.N.Nitish learned counsel for the

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petitioner and Sri. Manjunath B., learned counsel for the respondent. Perused the materials on record.

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In view of the rival contentions urged by learned

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counsel for both the parties, the point that would arise for my consideration is:

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" Whether the appellant has made out any grounds

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to allow the appeal and to convict the accused for the offence punishable under Section 138 of NI Act?"

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My answer to the above point in the 'Affirmative' for the following:

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REASONS

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The complainant in order to prove his contention

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examined PW1. According to PW1, he is the Managing Director of the complainant Company, authorized as per Ex.P.7 to represent it and accordingly, he filed the complaint. Sworn statement was filed by him reiterating his authority to

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5 - NC: 2024:KHC:37785 CRL.A No. 93 of 2023

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represent the complainant Company. Later he was cross examined by the learned counsel for the accused. It is pertinent to note that the accused has not disputed the authority of PW1 to represent the Company. Admittedly, both the learned counsel addressed arguments on merits of the case. It is pertinent to note that the accused had never raised any issue regarding maintainability of the complainant. However, the trial Court proceeded to formulate the point regarding maintainability of the complaint and proceeded to dismiss the same without affording an opportunity to the learned counsel for the complainant to substantiate his contention or to justify the authority of PW1. In this regard, I find considerable force in the contention taken by the learned counsel for the appellant.

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Learned counsel for the respondent fairly conceded that the accused had not taken such a defence regarding authority of PW1 to represent the Company and no such arguments were addressed before the Trial Court. Under such circumstances, I do not find any justification for the Trial Court to dismiss the complaint by raising an issue regarding maintainability which was never raised by either party. It appears that the Trial Court has made out a new defence for

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NC: 2024:KHC:37785 CRL.A No. 93 of 2023

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the accused even though no such defence was raised. It is also relevant to note that such point on maintainability of the petition was raised at the time of passing judgment and an opportunity appears to have given to the complainant to substantiate his contention. Under such circumstances, I am of the opinion that the impugned judgment passed by the Trial Court is liable to be set aside. The Trial Court is required to be directed to dispose of the matter purely on merits after affording opportunity to both the parties to address arguments once again afresh. Hence, I answer the above point in the affirmative and proceed to pass the following:

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ORDER

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Appeal is allowed .

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The judgment dated 01.12.2022 passed in CC No.221/2018 on the file of the learned Civil Judge and JMFC, Holenarsipura is hereby set aside.

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The matter is remanded back to the Trial Court to consider the matter afresh after affording opportunity to both the parties to address arguments.

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NC: 2024:KHC:37785 CRL.A No. 93 of 2023

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The appellant and the respondent are directed to appear before the Trial Court on 14.10.2024 without waiting for fresh summons.

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At this stage learned counsel for the respondent submits that the accused may be permitted to lead his evidence in case of necessity. The Trial Court can consider representation from both the parties and afford an opportunity to both to lead evidence or further evidence and dispose of the matter expeditiously in accordance with law.

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Sd/(M G UMA) JUDGE

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BH List No.: 2 Sl No.: 29

Sri.Guruganesh Chits Private Limited v. Sri.S.L.Suresh

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Sri.Guruganesh Chits Private Limited v. Sri.S.L.Suresh

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