Smt Kamalakshamma N K Vs D B Jatti

D.B. JATTI S/O LATE B.D. JATTI AGED ABOUT 43 YEARS R/AT DWARAKA MAYEE SY. NO.51, ECC ROAD BEHIND ST. LOURD’S CHURCH OUTER CIRCLE, PATTANDUR AGRAHARA WHITEFIELD, BENGALURU-560 066

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…RESPONDENT

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(BY SMT. VIJETHA R. NAIK, ADVOCATE)

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THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:19.9.2014, PASSED BY THE XIV ADDL. CHIEF METROPOLITAN MAGISTRATE, BENGALURU, IN C.C.NO.26054/12 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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NC: 2025:KHC:7436 CRL.A No. 153 of 2015

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the complainant challenging the judgment of acquittal dated 19.09.2014 passed in C.C.No.26054/2012 by the XIV Additional Chief Metropolitan Magistrate, Bengaluru, whereunder the respondent - accused has been acquitted for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for short).

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The case of the complainant in brief is that:

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The respondent - accused is a Proprietor of Jatti Automobiles. The complainant and her family have deposited a sum of Rs.30,00,000/- as fixed deposit in the Company of the accused and he has promised to pay the

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interest every month for a sum of Rs.55,000/-. to the complainant, but the accused had

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failed to pay the same. Towards repayment of the said deposit, accused has issued a cheque bearing No.288102 dated 02.09.2011 for Rs.5,00,000/- drawn on Bank of Saurashtra, Mission Road branch, Bengaluru. The complainant presented the said cheque and it came to be returned with an endorsement as "account closed". The complainant got issued a legal notice dated 17.09.2011 through RPAD. The complainant did not receive the postal acknowledgment, therefore, she lodged complaint before the postal department. Inspite of issuance of demand notice, the accused has not repaid the cheque amount. Therefore, the complainant had filed a private complaint against respondent - accused for offence under Section 138 of the N.I. Act. The learned Magistrate has taken cognizance and registered C.C.No.26054/2012 against the respondent - accused for offence under Section 138 of the N.I. Act. The plea of the accused has been recorded. The complainant in order to prove her case has examined herself as PW.1 and got marked Exs.P1 to P6. The statement of the accused has been recorded under Section

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313 of Cr.P.C. The accused has examined himself as DW.1 and no documents are got marked on defence side. The learned Magistrate after hearing the arguments on both sides, has formulated points for consideration and passed the impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal.

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The learned counsel for the appellant would contend that the learned Magistrate has observed that the drawer of Ex.P1 - cheque is Jatti Motors Limited and it is signed by its Chairman and Managing Director. The said Company has not been arrayed as an accused and therefore, the complaint against accused in his personal capacity is not maintainable. He further submits that when the Trial Court has observed that the complaint is not maintainable it ought not to have gone into the merits of the case and ought not to have observed that there is a doubt about existence of legally enforceable debt or liability.

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The learned counsel for the respondent would

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contend that considering the evidence on record, the learned Magistrate has rightly held that the drawer of the cheque, which is a Company had not been arrayed as an accused. Considering the documents produced, the learned Magistrate has rightly observed regarding doubt of legally enforceable debt or liability. The learned Magistrate by reasoned judgment has rightly acquitted the respondent - accused for offence under Section 138 of the N.I. Act. With this, she prayed for dismissal of the appeal.

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Having heard the learned counsels, the Court

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has perused the impugned judgment and Trial Court records.

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The cheque - Ex.P1 dated 02.09.2011 is issued

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in favour of the appellant - complainant for a sum of Rs.5,00,000/- and it is drawn on Bank of Saurashtra and drawer is Jatti Motors Limited. On dishonor of the said

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cheque, the appellant - complainant has got issued notice to the respondent and notice is at Ex.P3. The notice - Ex.P3 has not been issued to the drawer i.e., Jatti Motors Limited represented by its Chairman and Managing Director. In the said notice - Ex.P3, it is stated that he is a Proprietor of Jatti Automobiltes and complainant has deposited a sum of Rs.5,00,000/- as a fixed deposit.

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On perusal of the complaint, the drawer of the

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cheque i.e., Jatti Motors Limited has not been arrayed as an accused. As the drawer of the cheque has not been arrayed as an accused, the Chairman or Managing Director cannot be prosecuted in their individual capacity. Considering the said aspect, the learned Magistrate has rightly held that complaint against the respondent - accused is not maintainable as the Company has not been arrayed as an accused. When the Trial Court has held that complaint is not maintainable, it ought not to have gone into the merits of legally enforceable debt or otherwise. Considering all these aspects, the judgment of the Trial

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