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2011 Supreme(Kar) 859
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
K.N. Keshava Narayana, J.
M. Sureshchandra Shetty — Appellant
Vs.
Mohammed Kasim — Respondent
Criminal Appeal No. 1367 of 2004
Decided on : 24-03-2011
Advocate Appeared:
Mr. Pramod Kulkarni for U.P. Muliya, For the Appellant.
Mr. Parineetha S. Channal, For the Respondent.
The central legal point established in the judgment is the importance of proving the service of notice as required by Section 138(b) of the N.I. Act in cases of dishonour of cheques.
Headnote:
N.I. Act - Dishonour of Cheque - Section 138 - 138, 139 - The court discussed the existence of debt, issuance of the cheque, and the requirement of notice under Section 138(b) of the N.I. Act. It emphasized the importance of proving the service of notice and the opportunity it provides to the drawer of the cheque to make amends. The court found that the complainant failed to prove the service of notice, leading to the acquittal of the accused.
Fact of the Case:
The complainant filed a complaint under Section 138 of the Negotiable Instruments Act (N.I. Act) against the respondent for dishonour of a cheque. The trial court dismissed the complaint as the complainant failed to prove the service of notice required under Section 138(b) of the N.I. Act.
Finding of the Court:
The court found that the complainant failed to prove the service of notice required under Section 138(b) of the N.I. Act, leading to the acquittal of the accused.
Issues: The main issue was whether the complainant had satisfactorily proved the service of notice required under Section 138(b) of the N.I. Act.
Ratio Decidendi: The court emphasized the importance of proving the service of notice as required by Section 138(b) of the N.I. Act and the opportunity it provides to the drawer of the cheque to make amends.
Final Decision: The appeal was dismissed as the court found no perversity or illegality in the judgment under appeal.
K.N. KESHAVA NARAYANA, J.—This appeal filed under Section 378(1) and (4) of Cr. P.C. on obtaining special leave of this Court, is directed against the judgment dated 3.8.2004 passed by the V JMFC, Mangalore, in C.C. No. 1856/2003 dismissing the complaint filed by the complainant herein for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, ‘N.I. Act’) and acquitting the respondent-accused of the said offence.
2. Sri. M. Lokayya Shetty, the father of the petitioner herein filed a complaint under Section 138 read with 142 of the N.I. Act and Section 200 of Cr. P.C. against the respondent alleging the offence punishable under Section 138 of the N.I. Act, inter alia contending that for discharge of the debt due by him, the accused issued the cheque in question to the complainant for a sum of Rs. 1,50,000/- and when the said cheque was presented for encashment, the same was returned with the Banker’s endorsement ‘Account closed’ and in spite of service of notice, the accused failed to pay the amount covered under the cheque. The respondent-accused pleaded not guilty for the accusation made against him and claimed to be tried.
3. Before the case could be posted for evidence, the original complainant died. Therefore, the present petitioner, the son of the original complainant, came on record as his legal representative and continued the proceedings. During the trial, the petitioner herein examined himself as P.W. 1 and his mother, the wife of the original complainant was examined as P.W. 2. Exs. P1 to P12 were marked.
4. The respondent-accused during his examination under Section 313 of Cr. P.C. denied all the incriminating circumstances appearing against him. His principal defence was that, earlier, there were some monetary transactions between him and the original complainant and at the time of availing the loan, he had delivered a blank cheque to the original complainant as security and subsequently, the said cheque has been misused by the original complainant. It was also his defence that no notice as required under Section 138(b) of the N.I. Act was served on him. In respect of his defence, the respondent-accused examined himself as DW. 1 and also examined one more witness as DW.2.
5. After hearing both sides the learned Magistrate by the judgment under appeal dismissed the complaint holding that though the complainant has proved the existence of the debt and also issuance of the cheque for discharge of the said debt, and as also dischonour of the cheque, but has failed to prove the service of notice required to be issued under Section 138(b) of the N.I. Act. Consequently, the learned Magistrate acquitted the respondent-accused. Aggrieved by the said judgment, the complainant is before this Court in this appeal.
6. I have heard Sri. Pramod Kulkarni for Sri. U.P. Muliya, counsel for the appellant and Sri. Parineeth S. Channal for the respondent-complainant. I have perused the records.
7. As noticed supra, the learned Magistrate having regard to the evidence on record and also the specific defence put-forth by the respondent-accused, has recorded a finding that the complainant has satisfactorily proved the existence of debt due by the respondent and issuance of the cheque in question for discharge of the said debt. For this purpose, the learned Magistrate has also drawn presumption under Section 139 of the N.I. Act. Having perused the evidence both oral and documentary, I do not find any error in the said finding of the learned Magistrate that the complainant has proved the existence of the debt and issuance of the cheque for discharge of the said debt. There is no serious dispute that the cheque in question relates to the account held by the respondent with the Banker and the evidence on record further established, that it bears the signature of the respondent. There is also no serious dispute that the said cheque when presented for encashment came to be dishonoured with the Bankers’ endorsem
