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2009(2) Bankmann 567 (Karn.)
KARNATAKA HIGH COURT
Mohan Shanthana Goudar, J.
Upendra Kumar —Petitioner
versus
Don Finance Corporation,
Mangalore —Respondent
Cri. Revision Petition No. 623 of 2006
Decided on 24.9.2008
Counsel for the Parties:
For the Petitioner:Mr. P.P. Hegde, Advocate.
For the Respondent:Mr. S. Vishwanaith Shetty, Advocate.
IMPORTANT POINT
Scope of word Banker under the Negotiable Instruments Act is vast and stretches beyond the Banking (Regulation) Act, 1949.
Headnote:(i) Negotiable Instruments Act, 1881—Section 3—Word “Banker” —Scope—Vast and stretches beyond the Banking (Regulation) Act, 1949—Term “banker” includes bank, banker or banking institutions under the Banking (Regulation) Act, 1949—Term “banker” embraces business of banking. (Para 5)
(ii) Negotiable Instruments Act, 1881—Sections 138, 139—Conviction—Accused took loan from complainant—Amount of cheque consisted of principal and interest—Presumption arising under Section 139 not rebutted by the accused—All statutory requirement followed by the complainant—No error in appreciation of evidence by the trial court—Judgments and orders of conviction passed by the court below—Not liable to interference. (Para 8)
Mohan Shanthana Goudar, J.—This revision petition is filed by the convicted accused. The respondent is the complainant.
The petitioner is tried for the offence punishable under Sections 138 of the Negotiable Instruments Act, 1881 before the learned V Judicial Magistrate, First Class, Mangalore, in C.C. No.11 of 2003. After recording the evidence and hearing the parties, the Trial Court by its judgment and order dated 29.10.2004, convicted the accused and sentenced him to undergo simple imprisonment for a period of one month and to pay compensation of Rs. 40,000 to the complainant with default clause. The judgment and order of the Trial Court is confirmed by the Sessions Court, Dakshina Kannada, Mangalore, in Criminal Appeal No.385 of 2004, on 15.2.2006.
2. Case of the complainant in brief is that the accused borrowed a loan of Rs.15,000 and Rs. 6,000 on 28.10.1993 and 2.12.1993 respectively from the complainant, agreeing to repay the same with interest at the rate of 23% p.a. Towards repayment of the said loan, the accused issued the cheque Ext. P1 dated 11.11.1996 drawn on Mangala Credit Co-operative Society Limited, Kodialbail, Mangalore for Rs.24,168 in favour of the complainant. On presentation, the said cheque was returned with an endorsement of “insufficient funds”. After complying with all the necessary statutory requirements, the complaint came to be lodged. The complainant got examined himself as PW1 and got marked 15 exhibits. On behalf of the accused, two witnesses are examined, including the accused and two documents were got marked.
3. As aforementioned, both the Courts below have concurrently held against the accused and convicted for the offence under Section 138 of he Negotiable Instruments Act. Questioning both the judgments and orders, the petitioner has filed this revision petition.
4. It is contended on behalf of the petitioner that the cheques is not presented to a Bank, but was presented to a Co-operative Society and as the cheque was not presented to the Banker, the proceedings vitiate.
The very contention was raised by the petitioner herein before the courts below. The Courts below on evaluating the material on record have concluded on facts that the Mangala Credit Co-operative Society is not merely a Co-operative Society, but is a Co-operative Society doing banking business also.
5. In this context, it is relevant to note the definition of “Banker” is found in Section 3 of the Negotiable Instruments Act. The word “Banker” is defined as under:
“Section 3…..
‘Banker’—Banker includes any person acting as a Banker and any post office savings Bank.”
Thus, the scope of “Banker” under the Negotiable Instruments Act is so wide and enhanced that it includes any person acting as a Banker. In fact, it also includes the post office savings Bank. Banking need not necessarily be a business run with a profit motive. As a matter of fact, banking in an evolutionary concept. It cannot be said that bodies which carry on business not with a profit motive but with the incidents with which a business of banking is associated, are not Banks. What makes a person a Banker is not what he does with the money of which he obtains the use by lending it at interest or by investing it, but by the terms upon which he obtains deposits of money from the Banking Customers. If it was the intention of the Legislature to restrict the meaning of Banker as per Banking (Regulations) Act, 1949, a specific provision would have been made in the Negotiable Instruments Act to define the word “Banker” as any person regulated by Banking (Regulations) Act, 1949. On the other hand, Legislature in its wisdom has enhanced the scope of the term “Banker” under the Negotiable Instruments Act. The scope of term ‘Banker’ under the Negotiable Instruments Act is beyond the meaning included in the Banking (Regulations) Act, 1949. While defining the word ‘Banker’, the language employed in the section is ‘includes’ which is meant to ensure that not on
