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2018 Supreme(Kar) 528
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
JOHN MICHAEL CUNHA, J.
Nithyanand Mahadev Bhat - Petitioner
Vs.
Manoj Vinayak Pandit - Respondent
Crl. R.P. No. 2349 of 2010
Decided On : 13-03-2018
Advocate Appeared:
For the Petitioner: Sri. J.S. Shetty
For the Respondent: Sri. Vishwanath Hegde, Sri. Hegade, Neeralagi & Patil, K.S. Patil
Headnote:NEGOTIABLE INSTRUMENTS ACT, 1881 [C.A. No. 26/1881] - Section 138 - Dishonour of cheque - Cheque issued by accused towards discharge of loan availed from complainant, Finance Company dishonoured - Notice demanding payment of cheque amount issued by complainant, accepted by accused but no payment made - Failure of accused to prove that loan availed by him from complainant, already repaid - Accused also unable to prove that accused issued cheque in question to complainant, at time of availing loan and forgot to take it back subsequently after repayment - On complainant informing accused regarding dishonour of cheque, accused did not reply to notice sent by complainant - Defence raised by accused, appearing to be afterthought in absence of evidence - Conviction held, proper.
NEGOTIABLE INSTRUMENTS ACT, 1881 [C.A. No. 26/1881] - Section 138 - Dishonour of cheque - Sentence - Cheque issued by accused towards discharge of loan availed from complainant, Finance Company dishonoured - Section 138 providing punishment which may extend to 2 years with fine that may extend to 2 times of amount of cheque - Power to award compensation not available under Section 138 - Compensation awarded by subordinate Court, liable to be set aside - Accused sentenced to pay fine of Rs. 2,50,000/- and also interest at 16% per annum.
NEGOTIABLE INSTRUMENTS ACT, 1881 [C.A. No. 26/1881] - Sections 142, 7 - Complaint under Section 138 - Accused issued cheque in name of complainant, Finance Company - On dishonour of cheque issued by accused, complaint filed by proprietor of Finance Company - Proprietor of Finance Company covered under description of 'payee' defined in Section 7 - Held, Proprietor of Finance Company competent to present cheque for encashment and initiate proceedings on dishonour of said cheque.
NEGOTIABLE INSTRUMENTS ACT, 1881 [C.A. No. 26/1881] - Sections 142, 138 - Cognizance of offence - Complaint filed by proprietor - Accused availed loan from complainant, Finance Company - On dishonour of cheque issued by accused, complaint filed by proprietor of Finance Company - Accused never controverted filing of complaint by proprietor of Finance Company - All loan documents executed between accused and Finance Company containing signature of proprietor - Held, Merely because proprietor subscribed his signature on loan documents as managing partner, it cannot be held that he was not proprietor. Complaint filed by proprietor of Finance Company, maintainable.
This revision petition is directed against the concurrent findings of the Courts below, holding the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter called as N.I. Act).
2. The complainant is the proprietor of V.S.P. Capital and Finance, a registered proprietary concern involved in money lending business. The case of the complainant is that the accused availed a loan of Rs.1,50,000/- on 10.01.2000 and in repayment thereof, issued a cheque bearing No.007489 drawn on Syndicate Bank for Rs.1,40,606/-. The said cheque when presented for encashment came to be dishonoured for the reason “funds insufficient”. The complainant caused a notice to the accused demanding payment of the cheque amount. The accused received the notice without demur, but failed to comply with the demand and hence, the complainant initiated action under Section 138 of the N.I. Act.
3. Before the Trial Court, the complainant examined himself as P.W.1 and produced the original cheque – Ex.P-1, Bank endorsement – Ex.P-2, copy of the legal notice – Ex.P-3, postal acknowledgment – Ex.P-4 as well as the documents executed by the accused at the time of availing the loan namely the pro note, Form No.VI, Form No.V, loan ledger extract, money lending licence as Ex.P-5 to Ex.P-10. The accused examined himself as D.W.1 and took up a plea that he had borrowed a sum of Rs.1,50,000/- from the V.S.P. Capital and Finance and the same was repaid on 10.01.2000 and therefore, there was absolutely no necessity for the accused to avail Rs.1,50,000/- loan on 10.01.2000 as contended by the complainant. Further, the accused set up a plea that the cheque which was issued by him to the complainant at the time of availing the loan on 07.12.1999 was retained by the said V.S.P. Capital and Finance and the same is made use of to lay a false claim against the accused.
4. The Trial Court disbelieved the defence set up by the accused and came to the conclusion that the cheque in question was issued by the accused in discharge of the loan availed by him from the complainant and consequently found the accused guilty of the offence punishable under Section 138 of the N.I. Act and sentenced him to six months of imprisonment and a fine of Rs.5,000/- and in default thereof to undergo simple imprisonment for a period of three months. Further, the accused was directed to pay a compensation of Rs.2,75,000/- to the complainant.
5. The accused carried the matter in appeal before the Presiding Officer, Fast Track Court, Sirsi and by the impugned order dated 17.06.2010, the learned Sessions Judge dismissed the appeal affirming the order passed by the learned Magistrate in C.C. No.1822/2005.
6. Feeling aggrieved by the impugned orders, the accused has preferred this revision petition.
7. I have heard the learned counsel appearing for the petitioner Sri. J.S. Shetty and the learned counsel appearing for the respondent Sri. Vishwanath Hegde.
8. Learned counsel for the petitioner has raised threefold contentions.
(i) Firstly it is contended that the cheque in question was drawn in the name of V.S.P. Capital and Finance. The complaint is lodged by one Manoj Vinayak Pandit. Though the complainant has claimed that he was the proprietor of V.S.P. Capital and Finance, no documents are produced to substantiate that he was the proprietor of the said Finance at the relevant point of time. Therefore, the complaint was not maintainable before the Court below.
(ii) Secondly, the very document produced by the complainant namely Ex.P-8 – the form No.V maintained by V.S.P. Capital and Finance indicate that the accused had borrowed a sum of Rs.1,50,000/- from V.S.P. Capital and Finance on 07.12.1999. The said amount was repaid on 10.01.2000 and the account was closed as reflected in Ex.P-8. That being the fact, the contention of the complainant that on the same day, the accused borrowed a sum of Rs.1,50,000/- by executing the loan documents appears to be highly improba
