T. K. Nanjundappa Vs a. D. Thimmarayappa

THIS CRL.A IS FILED U/S 378(4) CR.PC PRAYING TO SET ASIDE THE ORDER PASSED BY III ADDITIONAL CIVIL JUDGE AND JMFC IV COURT, AT TUMKUR IN C.C.NO.8371 OF 2022 ACQUITTING THE RESPONDENT BY ITS ORDER DATED 04.09.2023 AND CONVICT THE RESPONDENT FOR THE OFFENCE P/U/S 138 OF N.I. ACT IN C.C.NO.8371/2022.

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THIS APPEAL, COMING ON FOR ADMISSION, 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 04.09.2023 passed in C.C.No.8371/2022 by the III Additional Civil Judge and JMFC IV Court, Tumkuru, whereunder the respondent - accused has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for brevity).

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The case of the appellant - complainant in brief, is as under:

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The respondent –accused is known person to the appellant –complainant from past several years and he is

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doing business of vending of petroleum products at Koratagere Town having huge reputation. Based on such acquaintance, the accused has approached the appellant – complainant on 09.06.2015 stating that, he has purchased

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lands at koratagere Town abutting to his petrol bunk during the year 2013 and he is in financial crises due to said business and accordingly has requested the appellant –complainant to lend a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) agreeing to repay the same within two years with interest. On the same day, the complainant has issued a cheque bearing No.000777 for Rs.10,00,000/- (Rupees Ten Lakhs only) drawn on Veerashaiva Co-Operative Bank. J.C. Road, Tumakuru infavour of the respondent –accused and the respondent – accused got encashed the said amount of Rs.10,00,000/(Rupees Ten Lakhs only). The respondent –accused has agreed to repay the said amount along with interest within two years and endorsed the same on a paper by affixing his signature. Further at the time of obtaining loan, the respondent accused had given the original sale deed dated 11.02.2013 pertaining to his land bearing Sy.No.125/2B measuring 01 acre 06 guntas situated at Mudalapanne village, Kasaba Hobli, Koratagere Taluk to the appellant –

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complainant as security. On 13.12.2017 the respondent – accused has approached the appellant –complainant and expresses his difficulty to repay the said amount of Rs.10,00,000/-(Rupees Ten Lakhs only) with interest and has sought for some time and endorsed the same on a paper by affixing his signature. Further once again on 18.12.2019 the respondent –accused had approached the appellant –complainant and expresses his difficulty to repay the said amount and requested to grant some more time and endorsed the same on a paper by affixing his signature. Finally, on 06.11.2021 the respondent – accused has approached the appellant –complainant and issued a cheque bearing No.684765 for Rs.10,00,000/(Rupees Ten Lakhs only) drawn on Karnataka Koratagere Branch in favour of the appellant –complainant towards – repayment of outstanding loan. The appellant complainant presented the said cheque for encashment and it was returned unpaid on 04.12.2021 with an endorsement “account closed”. Thereafter, the appellant -

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complainant got issued legal notice on 24.12.2021 demanding the respondent –accused to repay the cheque amount within statutory period. The said notice has been served on the respondent –accused. The respondent – accused neither paid the cheque amount nor issued any reply to the notice. Therefore, the complainant has filed a private complaint against the respondent - accused for offence punishable under Section 138 of the NI Act.

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Learned Magistrate has taken cognizance against the respondent –accused and registered case in C.C.No.8371/2022 for offence punishable under Section 138 of the N.I Act. The plea of respondent - accused has been recorded. The complainant in order to prove his case has examined himself as P.W.1 and got marked documents as Ex.C1 to C10. The statement of respondent -accused came to be recorded under Section 313 of Cr.P.C. The respondent –accused inspite of granting sufficient opportunity has not lead defence evidence. Learned Magistrate after hearing arguments on both sides

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has formulated points for consideration and passed impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal.

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Heard learned counsel for the appellant and learned counsel for the respondent.

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Learned counsel for the appellant would contend that the complaint has been filed on 18.01.2022 in the office as it was Covid-19 lockdown period and the office has received the complaint filed by the appellant – complainant and put it’s seal dated 18.01.2022 and thereafter, it was put up before the learned Magistrate on 21.02.2022. Learned Magistrate erred in taking note of filing of the complaint on 18.01.2022 and considered date of filing as 21.02.2022 and acquitted the respondent – accused on the ground that the complaint has not been filed in time. Learned counsel for the appellant has further contended that at the time of taking cognizance no such aspect has not been observed by learned Magistrate. She

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further submits that if there was any delay, the appellant –complainant ought to have filed an application seeking condonation of delay in filing the complaint. The complaint filed on 18.01.2022 is within statutory period as the last date of filing of the complaint is on 13.02.2022. Learned Magistrate has not gone into merits of the case and has acquitted the respondent –accused only on the ground that the complaint is not filed within statutory period. On these grounds she prayed to set aside the judgment of acquittal and remand the matter to trial Court for hearing arguments on merits of the case and dispose the case in accordance with law.

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Learned counsel for the respondent has supported the reasons assigned by the trial Court and prays for dismissal of the appeal.

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Having heard learned counsels, the Court has perused the impugned judgment and trial Court records. Considering the grounds urged, the point arises for my consideration is

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“Whether learned Magistrate has erred in taking note of filing of the complaint and passing the judgment of acquittal of respondent –accused for offence punishable under Section 138 of N.I. Act.”?

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My answer to the above point is in the in the affirmative for the following reasons.

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Cheque –Ex.C1 has been dishonoured on 04.12.2021 for a reason “Account closed”. The appellant –complainant has got issued notice by registered post dated 24.12.2021 a copy of which is at Ex.C2. Postal receipt is at Ex.C3. The said notice has been served on the respondent – accused on 29.12.2021 and postal acknowledgement is at Ex.C4. The complaint has been filed on 18.01.2022 and same can be observed on perusal of the seal of the Court on index page of the complaint which is at page No.47 of the trial Court records. Even though the complaint has been filed on 18.01.2022, it was put up before the learned Magistrate on 21.02.2022. At the time of taking cognizance, the learned Magistrate has not observed any

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delay in filing the complaint. Considering the date of filing

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i.e. 18.01.2022 the complaint filed by the appellant – complainant is within one month from the date of cause of action as notice on the respondent –accused has been served on 29.12.2021. Without considering all these aspects, learned Magistrate has erred in holding that the complaint filed by the appellant –complaint is beyond the statutory period.

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The complainant has been examined as P.W.1 and he has been partly cross examined by learned counsel for the respondent -accused. Even thereafter, inspite of keeping P.W.1 –complainant present, learned counsel for the respondent –accused has not cross examined and further cross examination has been taken as nil by order dated 13.06.2023. Thereafter, the statement of the accused has been recorded under Section 313 of Cr.P.C. Thereafter, the respondent –accused has been given opportunity to lead his defence evidence on 06.07.2023, 20.07.2023 and 04.08.2023. The respondent –accused

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inspite of giving opportunity has not lead his defence evidence and therefore, the case came to be posted to arguments. Considering the said aspect, the respondent – accused has been given opportunity for cross examination of P.W.1 and to lead his defence evidence. As the learned Magistrate has acquitted the respondent –accused only on the ground that the complaint is not filed within statutory period without going into merits of the case of complainant, the matter requires to be remanded to the trial Court to proceed with the matter from the stage of arguments.

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9. In the result, the following

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ORDER

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