Nagendra. K Vs Lakshmana

THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 23.07.2018, PASSED BY THE II ADDITIONAL SESSIONS JUDGE, MYSURU IN CRL.A.NO.12/2018, ALLOWING THIS APPEAL BY CONFIRMING THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE V ADDITIONAL 1^ST CIVIL JUDGE AT MYSORE IN C.C.NO.1523/2011, DATED 09.01.2018 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I ACT.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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This appeal is by the complainant being aggrieved by the judgment and order dated 23.07.2018 passed in Crl.A.No.12/2018 on the file of II Additional Sessions Judge, Mysuru (hereinafter referred to as 'the First Appellate Court') by which the First Appellate Court has set aside the judgment and order dated 09.01.2018 passed in C.C.No.1523/2011 on the file of V Additional I Civil Judge and JMFC, Mysuru (hereinafter referred to as 'the Trial Court') and has acquitted the respondent-accused of the offence punishable under Section 138 of Negotiable Instruments Act, 1881.

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The brief facts of the case are that a complaint under

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Section 200 came to be filed by the complainant-appellant herein alleging that on 14.02.2011 he had lent a sum of Rs.1,20,000/- to the accused-respondent who had promised to repay the same within one month. That in furtherance to payment of the said amount, accused-respondent on 10.03.2011 issued a cheque for Rs.1,20,000/dated 14.03.2011 drawn on ING Vyasa Bank Ltd., M.G. Halli Branch.

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That when the cheque was presented for encashment, same returned with an endorsement dated 16.03.2011 as ''insufficient fund''. Thereupon the complaint had caused issuance of notice on 26.03.2011. Since accused-respondent issued an untenable reply of he having no transaction with the complainant-appellant and the said cheque had been issued by the accused-respondent to one Raghu, the brother of the complainant, which has been misused by the complainantappellant, the present complaint was filed by the complainantappellant for taking cognizance of the offence committed under Section 138 of N.I. Act.

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The sworn statement was recorded. Summons were issued. Accused pleaded not guilty and evidence was led in.

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The complainant examined himself as PW1 and two additional witnesses were examined as PW2 and PW3 and exhibited 9 documents as Ex.P1 to Ex.P9. Accused examined himself as DW1 and exhibited 7 documents marked as Ex.D1 to Ex.D7.

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The trial court framed the points for its consideration,

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on appreciation of evidence answered point Nos.1 and 2 in the

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affirmative and consequently convicted the accused-respondent

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of the offence punishable under Section 138 of N.I. Act and sentenced him to pay a fine of Rs.1,25,000/- failing which, to undergo one month imprisonment.

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Being aggrieved, accused-respondent preferred an appeal before the First Appellate Court. The First appellate Court framed the following points for its consideration:

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'' 1. Whether the lower Court was justified in holding that the accused has failed to rebut presumption U/s 138 of N.I. Act?

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2. Whether the statutory notice issued is in accordance with law?

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3. What order?''

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Upon reappreciation of the evidence, the First

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Appellate Court allowed the appeal setting aside the order passed by trial Court and acquitted the accused-respondent of the said offence. Being aggrieved, complainant-appellant is before this Court.

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Learned counsel for the complainant-appellant submits that the First Appellate Court ought not to have interfered with a well-reasoned judgment and order passed by the trial Court. That the signature on the cheque has not been disputed by the accused-respondent. Though the accused-respondent has

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claimed that he had issued a cheque to the brother of the complainant-appellant in respect of certain chit-fund transaction and the same had been misused, no complaint has been filed by the accused-respondent. Since, the notice issued by the complainant-appellant calling upon the accusedrespondent to pay the cheque amount has not been complied with, the statutory presumption available under Section 118 of the N.I. Act has withdrawn in favour of the complainantappellant, which was rightly done by the trial Court and erroneously reversed by the First Appellate Court. That the First Appellate Court has gone into unwarranted aspect of the matter with regard to financial ability of the complainant-appellant and also the hyper technical defect in the notice which has resulted in impugned judgment which is unsustainable. Hence, seeks for allowing of the appeal.

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Though notice of this appeal is served on the accusedrespondent, there is no representation on behalf of the accused-respondent.

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Heard and perused the records.

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Point that arise for consideration is;

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'' Whether the First Appellate Court is justified in setting aside the judgment and order dated 09.01.2018 passed by the trial Court in C.C.No.1523/2011 and acquitting the accusedrespondent for the offence punishable under Section 138 of the N.I. Act?''

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Contents of the Ex.P3-notice dated 26.03.2011, reads

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as under:

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'' Under instructions from my client Sri. Nagendra K. S/O Kumaraswamy, Residing at door No. 1444, 12th cross, 2nd Stage, Srirampura, Mysore-23, you are hereby notified as follows:-

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1. That you have borrowed a sum of Rs. 1,20,000/-(Rs. One Lakh twenty thousand only) on 14-02-2011 from my client for your legal and domestic necessities and promising to my client that the above borrowed amount will be refunded within one month. When you have not. paid the borrowed amount to my client withirathe stipulated period, my client approached you and demanded to refund the amount borrowed by you, in reply on 10-03-2011 you have issued a post dated cheque for a sum of Rs. 1,20,000/- (Rs. One Lakh twenty thousand only) cheque No. 944976 dated: 14-03-2011 of ING Vysya Bank Ltd., M.G.Hally branch Ltd., Ramaswamy complex, K.R.S.Road, Mysore-570016.

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2. It is further notified that as per your direction my client has presented the cheque for encashment through his banker State Bank of India CCPC, Kuvempunagara, Mysore-570023 on 14-03-2011. But the said cheque was returned from said bank on 16-03-2011 with an endorsement "FUNDS INSUFFICIENT.

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3. On the same day my client has informed to you about the bounced cheque, but you have not responded seriously and not made any arrangement to pay the borrowed amount.

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4. It is further notified that you have issued the cheque without arranging the sufficient funds in your bank account and intentionally acted with highly illegal and also fraudulent one.

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Hence you are liable to prosecute under section 138 of Negotiable Instruments Act and also under section 420 of IPC. In an event you will be held liable to pay double of the cheque amount along with other costs, the receipt of this legal notice may please be acknowledged.

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You are liable to pay the charges of this legal notice of Rs. 1000/- to my client.''

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Perusal of the aforesaid contents of the notice indicate that the accused-respondent had allegedly borrowed a sum of Rs.1,20,000/- on 14.02.2011 promising to repay the same within one month. In other words, the stipulated period for repayment would have fallen due only on 13.03.2021 or 14.03.2021 as the case may be. It appears the complainantappellant on the premise of accused-respondent breaching the promise of repayment within a period of one month had approached the accused-respondent on 10.03.2011 instant, on which date the impugned cheque was allegedly issued by the accused-respondent. This appears to be improbable inasmuch as even the stipulated period of refund has not expired. Therefore, the complainant-appellant alleging breach of promise of refund would not arise.

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There is no averment in the entire notice making a specific demand for payment of the cheque amount as required

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under Proviso (b) of Section 138 of the N.I. Act. It is appropriate to refer to Section 138 of the N.I. Act, which reads as under:

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'' 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-

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Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for² [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

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Provided that nothing contained in this section shall apply unless--

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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque,³ [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

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(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

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Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability.''

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The statute requires a specific demand for payment of the amount of money by giving notice within 30 days of the information is mandatory. Paragraph No.4 of the Notice as extracted hereinabove, do not refer to any specific demand being raised.

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Thus, there is no compliance with the said statutory requirement. Needless to state, the cause of action for initiation of the proceeding would arise only after expiry of the period within which the accused-respondent is expected to make the payment as demanded in terms of Clause (b) to the Proviso of Section 138 of the N.I. Act, which is completely absent in the instant case.

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In his reply dated 13.04.2011, accused-respondent apart from disputing issuance of cheque, has also set up a defence that the said cheque had been issued by him along with other two cheques in favour of one Raghu, the brother of the complainant-appellant in a chit fund transaction which he had with the said Raghu. That the said Raghu has handed over the cheque to the complainant who has issued the same.

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Further, the accused-respondent has also set-up the defence of cheque being forged and fabricated.

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Ex.P1 is the cheque allegedly issued by the accusedrespondent in favour of the complainant-appellant to discharge the loan of Rs.1,20,000/-. Perusal of the cheque indicate that the date of the cheque as 14.03.2011 and there is an overwriting of the year, wherein it appears instead of 2001, by inserting numeral figure '1', it is made as 2011 and there is a small signature on the top of the said correction.

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Complainant-appellant has examined the bank manager as PW2, during the cross-examination he has admitted the differences of the specimen signature of the accused-respondent as found at the corrected portion of the cheque and the signature found on the cheque.

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The third aspect of the matter being accusedrespondent apart from cross examining the PW2 by suggesting that the cheque in question was misused by the complainantappellant which was issued by the accused-respondent to his brother, has reiterated the same by entering the witness box. Interestingly, in the cross examination the following

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suggestions have been made on behalf of the complainantappellant to the accused-respondent :

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'' " �ಾನು �ೆಕ�ನು� ರಘ� ಎನು�ವವ��ೆ �ೊ��ೆ�ೕ�ೆಂದ�ೆ ಸ� , �ಾನು

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ಹಣವನು� ಪ ೆದು�ೊಂಡು "ಂ#ರು$ಸ�ೇ �ಾ�ೇಂದ%ರವನು� ನಮ' ಮ�ೆಯನು� ಅ*ಯಲು ,ಾ-�ೇನು ಎಂದ�ೆ ಸ�ಯಲ. �ಾ �ೆಕ�ನು� ರಘ� ರವ��ೆ �ೊ/ೆ� ಎಂದ�ೆ ಸ� . �ಾನು �ಾ01ಾಲಯ�ೆ� 2ೕಸ ,ಾಡಲು

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ಸುಳ45 6ೇಳ478�ೆ�ೕ�ೆಂದ�ೆ ಸ�ಯಲ. 9: -1 ರ �ೆಕ�ನು� �ಾ�ೇ

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�ೊ��ೆ�ೕ;ೆಂದ�ೆ 6ೌದು . ಅದರ*.ರುವ ರುಜು ,ಾತ% ನನ�ದು� ಆದ�ೆ ಅದರ*.ರುವ ಹ@ಾ8Aರ ನನ��ಾ�$ರುವB#ಲ. ಎಂಬು�ಾ$ ನು-ಯುDಾ8�ೆ .

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�ಾನು Eಾ* Fಕ�ನು� Gೇ�ೆ 1ಾ�ಗೂ �ೊಡುವB#ಲ. �ಾನು �ೆಕ�ನು� Gೇ�ೆಯವ��ೆ ಬ�ೆದು�ೊ��ೆ�ೕ�ೆಂದ�ೆ ಇಲ. ಎಂಬು�ಾ$ ನು-ಯುDಾ8�ೆ .

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�ಾನು ವ0ವ6ಾರದ*. �ಾ�ೆ �ೆಲಸವನು� ,ಾಡುDೆ8ೕ�ೆ . ನನ�ೆ ಹಲ;ಾರು ಚಟಗಳ4 ಇ;ೆ ಎಂದ�ೆ ಸ�ಯಲ. ಅ�ೈ7ಕ ವ0ವ6ಾರಗM�ಾ$ �ಾನು �ಾ�ೇಂದ%ರವ�ಂದ ಪ ೆದ ಹಣವನು� ಉಪOೕ$P�ೊಂ-�ೆ�ೕ�ೆಂದ�ೆ ಸ�ಯಲ. �ಾನು ಂ�ಾಬುದQ Rಾಳ0ದ. �ೆಲವ�ಂದ ಹಣವನು� ಪ ೆದು�ೊಂಡು�ೆಕು� �ೊ��ೆ�ೕ�ೆಂದ�ೆ ಸ�ಯಲ." .''

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The aforesaid repeated suggestion made on behalf of

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the complainant-appellant of accused-respondent issuing the cheque to Raghu, who is none other than the brother of the complainant, fortifies the case of the accused-respondent.

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HC-KAR

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Apart from the above, the First Appellate Court has also found that in the passbook produced at Ex.P6 by the complainant-appellant on the alleged date of 14.02.2011, the date on which he allegedly lent Rs.1,20,000/- only a sum of Rs.39,258/- is shown and a sum of his Rs.10,000/- is shown to have been withdrawn.

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As rightly taken note of by the First Appellate Court, when the complainant himself did not have money in his bank and had withdrawn only Rs.10,000/-, the question with regard to him paying Rs.1,20,000/- becomes questionable.

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The holistic reading of the oral and documentary evidence, indicate that the accused-respondent had raised plausible and acceptable defence, rebutting the presumption available under the statute in favour of the complainantappellant, and the complainant-appellant has not discharged the burden. In that view of the matter, this Court do not find any reason to interfere with the judgment and order passed by the First Appellate Court. Appeal lacks merits accordingly following:

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