Karnataka High Court
M/S Super Cassettes Industries Ltd vs Sri.G M Hulbanni Prop: M/S Adarsh ... on 25 August, 2012
Equivalent citations: 2013 ACD 1052 (KAR), 2013 (4) AIR KANT HCR 62, (2014) 1 ALLCRILR 814, (2014) 4 BANKCAS 432, (2012) 5 KANT LJ 665, 2014 ALLMR(CRI) 126
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRL.A.No.900/2004 (A)
BETWEEN:
M/s.Super Cassettes Industries Limited.,
206-207, Embassy Centre,
11, Crescent Road,
Kumara Park East,
Bangalore-560 001.
Represented by its Area Manager,
Sri.R.P.Singh. ... Appellant
[By Sri.G.Jairaj for M/s. G.Jairaj & Associates,
Advocates]
AND :
Sri.G.M.Hulbanni,
Proprietor,
M/s. Adarsh Enterprises,
Tilak Park, Gadag,
No.73, KHB Colony,
Lakandi, Gadag.
Also at:
Sri.G.M.Hulbanni,
C/o M.A.Jatigar,
Siddarameshwara Nagar,
Hoogar Colony,
Gadag. ... Respondent
[By Sri.Hanumantha Reddy Sahukar, Advocate]
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This Criminal Appeal is filed under Section 378(3)
Cr.P.C. praying to set aside the judgment dated
26.04.2004 passed by the XX Additional City Civil
Judge, Bangalore (CCH-5) in Criminal Appeal
No.67/2003- and confirm the order dated 30.11.2002
passed by the XV Additional Chief Metropolitan
Magistrate, Bangalore City in C.C.No.18122/1994.
This Criminal Appeal coming for orders on this
day, the court delivered the following:
JUDGMENT
Though this appeal is listed for orders regarding non-receipt of the records from the trial Court, the matter is heard on merits by consent of the learned counsel appearing on both sides. Having regard to the short question involved in this appeal, the records are not very much necessary for disposal of this appeal.
2. This appeal is by the complainant in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") and is questioning the legality and correctness of the order of acquittal passed by the Appellate Court in the appeal filed by the respondent - accused after setting aside the judgment of conviction recorded by the trial Court. 3
3. The appellant filed complaint alleging offence under Section 138 of the Act against the respondent - accused inter alia contending that towards discharge of his liability outstanding to the complainant, the accused issued cheque dated 31.7.1993 for a sum of Rs.87,966/- drawn on Syndicate Bank, Gadag and when the said cheque was presented for encashment, the same was returned unpaid with the banker's endorsement "insufficient funds" and in spite of service of statutory notice, the respondent has failed to pay the amount covered under the cheque as such he has committed the aforesaid offence.
4. The respondent - accused on his appearance before the learned Magistrate pleaded not guilty for the accusation made against him and claimed to be tried. His defence was one of total denial. It was also his defence that the cheque in question was not issued for discharge of any debt or liability and that there was no valid notice served on him as required by Section 138(b) of the Act. In support of his case, the complainant 4 examined himself and also produced documentary evidence. The respondent - accused did not choose to lead any defence evidence.
5. After hearing both sides, the learned Magistrate found the respondent guilty of the offence alleged against him and held that presumption under Section 139 of the Act required to be drawn in favour of the complainant and against the respondent, having regard to the fact that the cheque in question relate to the account held by the respondent with a Banker and it bears his signature and that the respondent - accused has failed to produce any evidence to rebut the said presumption. The learned Magistrate also held that the defence of the accused that the notice was not served on him cannot be accepted for the reason that the notice issued as per Ex.P.4 has been duly served on the respondent personally. For this purpose, the learned Magistrate exercising his power under Section 73 of the Indian Evidence Act, compared the signature purported to be that of the accused on the copy of notice Ex.P.4 5 with the admitted signature of the accused and concluded that the signature found on Ex.P.4 is similar to the admitted signature of the accused. In that view of the matter, the learned Magistrate held that the complainant has proved that he issued notice within the statutory period specified under Section 138(b) of the Act and the same has been served on the accused. In that view of the matter, the learned Magistrate convicted the respondent for the said offence. Aggrieved by the said judgment of conviction, the respondent filed appeal before the learned Sessions Judge and the Appellate Court though concurred with the findings of the trial Court with regard to the presumption under Section 139 of the Act and the failure on the part of the accused to rebut the said presumption, however, accepted the contention of the accused that the complainant has not proved issuance of notice as required by Section 138(b) of the Act. Therefore, the Appellate Court reversed the judgment of conviction and ordered acquittal of the respondent - accused. Aggrieved by the said judgment, the complainant is in appeal before this Court. 6
6. As observed by both the courts below, the cheque in question admittedly relates to the account held by the respondent - accused with the banker and it bears his signature. From the apparent tenor of the cheque, it is clear that the complainant is the drawee of the cheque and it was issued on 31.7.1993. Section 139 of the Act provides for a presumption in favour of the drawee of the cheque that the cheque of the nature mentioned in Section 138 of the Act has been issued for discharge of debt or other liability by the drawer to the drawee or the holder in due course. Having regard to the facts and circumstances of the case, both the courts below are justified in drawing the presumption under Section 139 of the Act that the cheque in question had been issued for discharge of debt or liability due by the accused to the complainant. Of course, the said presumption is a rebuttable one. However, as held by both the courts below, the accused has not rebutted the said presumption. No doubt, the accused, in order to rebut the said presumption, is not necessarily required to lead positive evidence either by examining himself or 7 by examining witness. For the said purpose, he may use the circumstances brought out in the evidence of the complainant himself. In the case on hand, the accused did not enter the witness box nor examined any witness to show that there was no debt or liability existing and that the cheque in question was not issued for discharge of any such debt or liability nor in the cross-examination of the complainant no circumstance was brought out to doubt the existence of the debt and issuance of cheque for discharge of such liability. Therefore, both the courts below, in my opinion, are justified in holding that the cheque in question was issued by the respondent for discharge of liability due by him to the complainant.
7. According to the case of the complainant, the cheque in question was presented for encashment for the last time some time prior to 8.10.1993 and the same was returned unpaid and the said fact was intimated to him by his banker by a memo dated 13.10.1993 which is marked as Ex.P.3. It is the further case of the 8 complainant that on 28.10.1993, he issued notice to the accused intimating him about the dishonour of the cheque and calling upon him to pay the amount covered under the cheque and the said notice was served on the accused on the same day.
8. The accused before the trial Court disputed the service of notice on him as alleged by the complainant. The trial Court, however, did not accept this contention of the accused. As noticed supra, for the said purpose, the trial Court in exercise of power under Section 73 of the Indian Evidence Act, compared the signature found on the copy of notice-Ex.P.4 and the admitted signature of the accused and recorded a finding that the signature found on Ex.P.4 is similar to the admitted signature of the accused. On that basis, the trial Court came to the conclusion that it was served on the accused personally on 28.10.1993, as such, the notice issued as per Ex.P.4 was within the period prescribed under Section 138(b) of the Act.
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9. Clause (b) of proviso to Section 138 of the Act requires that the payee or holder in due course of the cheque as the cheque may be should make a demand for payment of the amount covered under the dishonoured cheque by giving a notice in writing to the drawer of the cheque. As per the law stood in 1993, the notice was required to be given within 15 days from the date of the receipt of the information by the drawee of the cheque from his banker about the return of the cheque unpaid. It is fairly well settled now by catena of decisions that cause of action for a drawee to file complaint commences on issuance of the notice as per Clause (b) of proviso to Section 138 of the Act within the period prescribed therein and upon failure of the drawer of the cheque to pay the amount covered under the cheque within the period of 15 days from the date of the receipt of the said notice as provided by clause (c) of proviso to Section 138 of the Act. As per Section 142 of the Act, the complaint should be filed within 30 days from the expiry of 15 days provided to the drawer to pay the amount upon receipt of the notice. Therefore, it is 10 necessary to find out as to whether the notice had been given by the complainant within 15 days from the date of receipt of the information from his banker regarding return of the cheque unpaid.
10. As noticed supra, according to the complainant, he received the information from his banker on 13.10.1993 as per the original of Ex.P.4. There is no serious dispute about the complainant receiving the information from his banker regarding return of the cheque unpaid through a banker's memo dated 13.10.1993 as per Ex.P.3. Therefore, the notice as required by clause (b) of proviso to Section 138 of the Act was to be given on or before 28.10.1993. According to the complainant, the notice was given on 28.10.1993. It is not the case of the complainant that the notice as per the original of Ex.P.4 was sent to the accused through postal authorities or through any courier service. The reading of the complaint, a copy of which is made available by the learned counsel, indicates that in the complaint there is no averment as to the mode by 11 which the notice was alleged to have been served on the respondent - accused. Even in the examination-in- chief of the complainant, a copy of which is made available, there is no indication as to the mode by which the notice was served on the accused. In the cross- examination of PW.1, to a suggestion put to him as to how the notice was served, PW.1 has stated that the notice was served personally on the accused on 28.10.1993. For having served the notice personally on the accused, according to the complainant, the accused subscribed his signature on a copy of the notice. The signature found on Ex.P.4 purported to be that of the accused is disputed by the accused. No doubt, the accused did not enter the witness box. Nevertheless, for the purpose of establishing that a notice, as required by clause (b) of proviso to Section 138 of the Act has been given within the period prescribed therein, it was for the complainant to show that the notice was given and served on the accused on 28.10.1993. If the notice is not proved to have been given on 28.10.1993, it cannot be said that such notice was as required by Clause (b) of 12 proviso to Section 138 of the Act. Issuance of notice as required by Clause (b) of proviso to Section 138 of the Act is a condition precedent for initiating the proceedings for an offence under Section 138 of the Act.
11. As noticed supra, it is not the case of the complainant that notice as per original of Ex.P.4 was sent to the addressee viz., the accused through postal authorities or through courier services. At this stage, it is necessary to note that though the respondent - accused did not enter the witness box and denied the signature found on Ex.P.4, in my opinion, the trial Court ought not to have readily resorted to exercise the power under Section 73 of the Indian Evidence Act. In catena of decisions, it has been held that the courts should be slow in resorting to exercise power under Section 73 of the Indian Evidence Act for the reason that the court is not an expert. By comparison of the signature, one may say that disputed signature is similar to the admitted signature but a layman or for that matter even the court which is not expert in 13 comparing hand writing or in comparison of the signatures will not be in a position to say as to whether the disputed signature is that of the person who has put the admitted signature. The conclusion that the disputed signature is similar to admitted signature cannot lead to a conclusion that the disputed signature is by the same person who has put the admitted signature. Such an opinion can be furnished only by an expert in the field who by his experience and also by applying scientific techniques would compare them based on several features and characteristics and come to a conclusion.
In the case of State (Delhi Administration) Vs. Pali Ram reported in AIR 1979 Supreme Court 14, the Apex Court has observed thus in para 29, "29. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and 14 caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."
In the case of State of Maharashtra Vs.
Sukhdeo Singh and another reported in 1992
Cri.L.J.3454, the Apex Court referring to the purport of Section 73 of the Evidence Act has held thus in para 32;
"32. x x x x Although the section specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed 15 out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings."
Therefore, in the absence of an opinion from the expert, the trial Court ought not have resorted to exercise power under Section 73 of the Indian Evidence Act to compare the signatures and on that basis come to a conclusion that the signature found on Ex.P.4 is that of the accused.
12. Assuming for the purpose of argument that the signature found on Ex.P.4 is that of the accused, still it would not prove that the notice as per the original of Ex.P.4 was given and served on the accused on 28.10.1993. The Lower Appellate Court for this purpose has noticed that the notice as per the original of Ex.P.4 is addressed to the respondent - accused in Gadag 16 whereas the complainant is stationed in Bangalore. Having regard to the distance between Bangalore and Gadag, the Lower Appellate Court found it difficult to accept the say of the complainant that it was served on the accused on 28.10.1993 itself. The complainant in his evidence has not come out with any explanation as to in which place the notice was served on the respondent - accused, either in Gadag or in Bangalore. Having regard to the facts and circumstances of the case and the evidence on record and also the silence on the part of the complainant to the state those facts both in the complaint and in examination-in-chief, in my opinion, the Lower Appellate Court is justified in holding that the notice is not proved to have been given to the respondent/accused on 28.10.1993 that is within the period prescribed by clause (b) of Section 138 of the Act. In my opinion, the learned Sessions Judge is justified in holding that there was no valid notice as required by clause (b) of proviso to Section 138 of the Act, as such the accused is entitled for an order of acquittal. The findings recorded by the Lower Appellate Court are 17 sound and reasonable and therefore, it does not call for interference by this Court. In this view of the matter, I find no merit in this appeal.
13. Accordingly, the appeal is dismissed.
14. It is submitted by the learned counsel for the respondent that pursuant to the interim order passed by the Appellate Court, the respondent - accused had deposited a sum of Rs.17,600/- on 17.6.2003 before the trial Court and sought for ordering refund of the said amount. In view of the dismissal of the appeal filed by the complainant and acquittal of the respondent - accused, it is needless to state that the respondent - accused is entitled for the refund of the amount, if any deposited by him.
SD/-
JUDGE RS/*