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2022 Supreme(Kar) 1412
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
ANIL B. KATTI, J.
Amaresh S/o. Adappa Kadabur - Appellant
Versus
Shivakumar S/o. Jevendra - Respondent
Criminal Appeal No. 200112 of 2019
Decided On : 30-11-2022
For the Appellant : Sri Ananth S. Jahagirdar.
For the Respondent: Sri Mahantesh Patil.
The court clarified the requirements for proving a cheque bounce case under Section 138 of N.I.Act, including the presumption under Section 139 and the scope of Section 141 regarding the liability of the drawer of the cheque.
Headnote:
N.I.Act - Cheque Bounce - Section 138 - 139 - 141
Fact of the Case:
The accused borrowed Rs.5,00,000 from the complainant and issued a cheque for Rs.8,50,000, which bounced. The complainant filed a case under Section 138 of N.I.Act.
Finding of the Court:
The Trial Court acquitted the accused, but the appellate court found the accused guilty of the offence under Section 138 of N.I.Act and imposed a fine of Rs.8,50,000 or six months imprisonment in default.
Issues: The issues included the service of demand notice, alleged tampering of the cheque, and compliance with Section 141 of N.I.Act.
Ratio Decidendi: The court found that the demand notice was deemed to be served on the accused, the alleged material alteration in the cheque did not rebut the presumption under Section 139 of N.I.Act, and the proprietorship concern of the accused did not fall within the ambit of Section 141 of N.I.Act.
Final Decision: The accused was convicted for the offence under Section 138 of N.I.Act and sentenced to pay a fine of Rs.8,50,000 or undergo imprisonment for six months in default.
JUDGMENT :
The appellant/complainant is challenging the judgment of acquittal passed by II Additional Civil Judge & JMFC, Sindhanur in C.C.No.856/2015, dated 07.08.2019 for the offence under Section 138 of N.I.Act.
2. The parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of complainant can be stated in nutshell to the effect that accused has approached the complainant and requested to give hand loan of Rs.5,00,000/- for his legal necessities. On 02.02.2009 the accused on executing demand promissory note in presence of witnesses has taken loan of Rs.5,00,000/- agreeing to pay interest at 2% per month. The accused in order to discharge the said debt has issued cheque bearing No.128218 dated 02.01.2012 drawn on Canara Bank, Sindhanur Branch for an amount of Rs.8,50,000/- inclusive of interest. The said cheque on presentation through his banker came to be bounced for want of sufficient fund in the account of accused as per bank endorsement dated 04.01.2004. The complainant has issued demand notice dated 17.01.2012 on two addresses of accused. The said notices were returned with endorsement no such addressee and party left on 20.01.2012 and 19.01.2012. The accused has deliberately evaded service of notice on the said address to escape from the legal clutches. The complaint is filed on 31.03.2012.
4. In response to the summons, the accused has appeared through counsel and contested the case. The complainant in order to prove his case relied on the oral evidence of PW1 and the documents as per Ex.P1 to Ex.P7. The accused has not lead any defence evidence. The Trial Court after having heard the arguments of both side and on perusal of oral and documentary evidence has acquitted the accused from the charge leveled against him for the offence under Section 138 of N.I.Act.
5. The appellant/ complainant has challenged the correctness and legality of the said judgment of acquittal contending that the accused has not taken any defence regarding tampering of the cheque, the amount shown in figure and in words matches and there is no doubt about issuance of cheque. The observation and findings of the Trial Court about non compliance of Section 141 of N.I.Act also cannot be legally sustained. The approach and the appreciation of oral and documentary evidence by the Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to convict the accused for the charge leveled against him.
6. In response to the notice of appeal, the respondent has appeared through his counsel.
7. Heard the arguments of both sides.
8. The appellant/complainant in support of his oral evidence about issuance of cheque by accused for legally enforceable debt has relied on the cheque as per Ex.P1 dated 02.01.2012 drawn on Canara Bank for Rs.8,50,000/- which is inclusive of interest as on the said date. The complainant has presented the said cheque for collection through his banker on 02.01.2012 as per Ex.P2. The same was bounced for want of sufficient funds in the account of accused vide bank endorsement as per Ex.P3. The complainant has issued demand notice as per Ex.P4 on both the addresses of the accused. The same was returned with endorsement no such addressee and party left on 20.01.2012 and 19.01.2012. The accused has evaded service of notice on the said address to escape from the legal clutches. The accused has not paid the amount covered under the cheque as per Ex.P1 on demand and therefore the complaint is filed on 31.03.2012.
9. The first contention of accused is that demand notice is not served on him. The complainant has issued demand notice on the house address and place of business of accused. The notice sent to the house address as per Ex.P5 and Ex.P5(a) returned unserved with an endorsement 'no such addressee'. The notice sent to the place of business as per Ex.P6 and Ex.P6(a) returned with endorsement as 'party left'. The
