Bangalore District Court
Pan Asia Hospitals Pvt. Ltd vs Ravi Raju K on 6 January, 2025
KABC020326842021
IN THE COURT OF THE XXII ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
(SCCH-24).
Presided Over by Smt. Roopashri, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated: On this 6thday of January 2025
CC NO.11369/2021
1. Sl.No. of the Case : C.C.No.11369 of 2021.
2. The date of : 30-05-2018
commission of the
offence
3. Name of the : PAN Asia Hospital Pvt Ltd.,
Complainant Through its sister concern
Navachethana Hospital,
Having their administrative
office at No.#17/A2. A Sector,
Opp. Railwheel Factory,
Doddaballapur main road,
Yelahanka New Town,
Bangalore -64.
Represented by its
Medical records Executive,
Sri Girish K T
(By Sri Sandeep Hegde
advocate)
SCCH-24 2 C.C.11369/2021
Vs/
4. Name of the : Mr. Ravi Raju K
Accused S/o Kalappa S N
# 188, Shyanuboganahalli,
Arekere, Hesaragatta Hobali,
Bangalore North,
Bangalore-561203.
(By D. A Shiva Kumar,
Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Acquitted
8. Date of such order for : 06-01-2025
the following
JUDGMENT
This complaint is filed under Sec. 200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. It is the case of the complainant that: The complainant is the sister concern rendering health services. The father of the accused was admitted as inpatient from 08-01-2017 to 18-01-2017 in the SCCH-24 3 C.C.11369/2021 complainant's hospital and underwent treatment for I & D and Fasciotomy of right foot, wound debridement of right diabetic foot.
3. At the time of discharge, the accused has taken the responsibility of clearing the medical bill of his father amounted to Rs.1,90,000/-. In that regard, the accused has issued two cheques bearing No.003632 dated 23-10- 2017 for a sum of Rs.90,000/- and bearing No.003629 dated 23-10-2017 for a sum of Rs.1,00,000/- both drawn on ICICI Bank, Yelahanka Branch, 2019-A, 3rd cross Sector B, Yelahanka New Town, Bangalore. The complainant had presented the said cheques for encashment through its banker, but same was returned with an endorsement "Funds Insufficient". Thereafter, the complainant got issued legal notice dated: 09-01-2018 to the accused by speed post. The said notice was served to the accused on 22-01-2019. In spite of one month's time the accused has not repaid the cheque amount. Accordingly, the accused has committed offence punishable under Sec.138 of N.I Act.
4. After recording the sworn statement of the complainant and also verifying the documents, cognizance was taken against the accused for the offence punishable under Sec. 138 of N.I. Act. The accused on receiving the SCCH-24 4 C.C.11369/2021 summons appeared before this Court through his counsel, he was enlarged on bail and his plea was recorded. The accused pleaded not guilty and claimed to be tried. Hence, the case was posted for evidence of the complainant.
5. The complainant got examined its Medical record Executive as PW.1 and got marked documents as Exs.P1 to 13. Then, the case was posted for recording the statement of accused under Sec.313 Cr.P.C. In the statement U/s 313 Cr.P.C., the accused has denied all the incriminating evidence appearing against him and claimed to be tried. The accused examined himself as DW.1 and closed his side.
6. Heard the arguments on both sides and Perused the records.
7. The following points arise for my consideration:
1. Whether the complainant proves that accused has committed offence punishable under Sec.138 of N.I. Act?
2. What order?
8. My findings on the above points are as under
Point No.1: In the Negative Point No.2: As per final order for the following:SCCH-24 5 C.C.11369/2021
-: R E A S O N S :-
9. POINT NO.1:- This is a private complaint filed under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act.
10. It is the definite case of the complainant that, towards the discharge of medical bill of father of the accused which amounted to Rs.1,90,000/-, the accused has issued disputed cheques and when the cheques were presented, same was dishonoued for the reason "Insufficient Funds". Though the said fact was brought to the notice of the accused by issuing legal notice but accused has failed to repay the cheque amount.
11. To substantiate the said contention, the complainant got examined its Medical Record Executive as PW1. In the examination in chief the complainant has reiterated the averments made in the complaint. Ex.P1 and Ex.P2 are the cheques. The accused has admitted that Ex.P1 and Ex.P2 are relates to his account so also his signature in the Ex.P1 and Ex.P2. Ex.P3 to Ex.P6 are the cheques return memo which indicates that cheques returned for the reason "Funds Insufficient'', Ex.P7 is the demand notice issued by the complainant to the accused through his Advocate calling upon the accused to make SCCH-24 6 C.C.11369/2021 payment of the cheques amount, Ex.P8 is the postal receipt, ExP9 is the DTDC Track consignment receipt, Ex.P10 is the authorization letter, Ex.P11 is the first admission discharge summary issued from Navachethana Hospital, bill and receipt, Ex.P12 is the second admission discharge summary, bills and receipts, Ex.P13 is the third admission discharge summary, bills and receipts.
12. On careful perusal of the oral and documentary evidence, it would go to show that accused has admitted his signature in the disputed cheques so also admitted that cheques in question relates to his account. The learned counsel for complainant at this juncture, has referred the judgment reported in (2010) 11 SCC 441 between Rangappa Vs. Sri Mohan, wherein it was observed inter alia that "The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttal presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. Furthermore, the prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of SCCH-24 7 C.C.11369/2021 preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies".
13. In (2018) 8 SCC 165 between Kishan Rao Vs. Shankar Gowda it was observed that "accused may adduce evidence to rebut presumption under Sec. 139, but mere denial regarding existence of debt shall not serve any purpose. In the event accused is able to raise a probable defence which creates doubt with regard to existence of a debt or liability, the presumption may fail".
14. In the aforesaid case, court from that of the cheque which contained signature of the accused and it was given to the complainant to present in bank, presumption under Sec. 139 was raised which was not rebutted by accused. Accused even did not come in witness box to support his case. In reply to notice which was given by accused, he took defence that cheque was stolen by complainant and the said defence was rejected by the court. Under the given set of facts, the Hon'ble Supreme Court has observed so.
SCCH-24 8 C.C.11369/202115. Per contra, the learned counsel for accused has relied upon the judgment reported in ILR 2008 Kar 4629 between Shiva Murthy Vs. Amruth Raj. In the said case, the trial court and first Appellate court proceeded to consider the conduct of the accused. It was observed by the hon'ble Supreme court that "Before considering the conduct of accused to find out as to whether or not he has been able to rebut the Statutory Presumption available under Section 139, the Courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under Section 139 of the N.I Act and thereafter find out as to whether or not the accused has rebutted the said presumption".
16. In the said case it was further observed that "Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. Accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different".
SCCH-24 9 C.C.11369/202117. In (2019) 5 SCC 418 between Basalingappa Vs. Mudibasappa, it was observed that "prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which accused relies".
18. Keeping in mind the observation made in the aforesaid rulings, coming to the case in hand, when accused has admitted his signature in the disputed chques so also admitted that it relates to his account presumption in favour of the complainant can be raised that there exist legally enforceable debt or liability. Once the initial burden is discharged by the complainant that cheques were issued by the accused, then onus will shifts upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability.
19. The accused while admitting that his father was got admitted in the complainant hospital from 08-01- 2017 to 18-01-2017 as inpatient and also the hospital SCCH-24 10 C.C.11369/2021 bill incurred to the tune of Rs.1,90,000/- has taken the defense that he has cleared entire bill amount of Rs.1,90,000/- at the time of his father got discharged from the hospital. After the discharge since the health condition of his father was worsened, his father was again admitted in the said hospital from 21-01-2017 to 29-01- 2017 and got discharged for the second time by paying the hospital bill of Rs.42,000/-. After the discharge for second time, since there was no improvement in the health condition of the father of accused, he was admitted for the third time in the said hospital from 30- 01-2017 to 09-02-2017 and he was discharged by paying bill amount of Rs.90,000/- and thus they have cleared entire bill amount and there is nothing due towards the bill and that the disputed two cheques were given by the accused as security at the time of admission of his father for the first time as the hospital authorities demanded to pay the advance amount and since accused did not had money at that time, he issued disputed cheques as security and that even after the payment of entire bill amount, the complainant has not returned the cheques and that since the complainant hospital has not given proper treatment to the father of accused and the father of accused had to take treatment at Bowring Hospital, they have questioned the hospital authorities about the SCCH-24 11 C.C.11369/2021 improper treatment given to his father, hence enraged by the act of the accused and his family members, the complainant has misused the cheques given as security and filed this false complaint.
20. It is further submitted by the accused that the notice stated to be issued by the complainant is not served to him and he came to know of the case registered against him only when the police has served summons and he has not received any intimation either from the bank or from the complainant about dishonour of cheques. In order to probablise the defense, the accused has got examined himself as DW1.
21. In the light of the defence taken by accused, if the oral and documentary evidence placed on record is perused, the admitted fact which emerges is that: The disputed cheques relates to the account of accused and it bears the signature of accused. It is also an admitted fact that the father of accused got admitted in the complainant hospital for the first time from 08-01-2017 to 18-01-2017 and got discharged as per ExP11 on 18-01-2017. At the first admission, the hospital bill was Rs.1, 90,000/-. For the second time as per Ex.P12 the father of accused was got admitted on 21-01-2017 and discharged on 29-01- 2017 and the hospital bill for the second admission was SCCH-24 12 C.C.11369/2021 Rs.42,000/- . The father of the accused got admitted for the third time from 30-01-2017 to 09-02-2017 and as per ExP13 the hospital bill for the third admission was Rs.90,000/-. As observed supra, it is the definite case of the accused that at the time of discharge of his father from the hospital the entire bill amount was cleared and there is nothing due towards the hospital bill .
22. If the averments of the legal notice, complaint and the evidence in chief of PW.1 is read in whole, it is categorically stated by the complainant that cheques in question for Rs.1,90,000/- was issued towards the hospital bill incurred for the treatment taken by the father of accused from 08-01-2017 to 18-01-2017. During the cross examination of PW.1 when suggestion was posed on behalf of the accused that the complainant has not stated either in the complaint or in the legal notice or in the evidence in chief about the treatment taken by his father for the second and third time in the said hospital, the answer of the Pw1 was that " since cheques in question was issued towards the discharge of bill amount of Rs.1,90,000/- incurred for the treatment taken by the father of accused from 08-01-2017 to 18-01- 2017, they have not pleaded in the complaint and legal notice regarding the treatment taken by the father of SCCH-24 13 C.C.11369/2021 accused for the second and third time". According to the Pw1 it is irrelevant to plead regarding the treatment taken by the father of accused for the second and third time because cheques in question was issued not towards the discharge of bill amount relating to the treatment taken for the second and third admission.
23. In the back ground of the specific case of the complainant that cheques in question was issued towards the payment of hospital bill amounting to Rs.1, 90,000/- incurred for the treatment taken in between 08-01-2017 to 18-01-2017, if the Ex.P11 to Ex.P13 are carefully perused, in the discharge summary and annexed document as per Ex.P11, the bill amount incurred was Rs.1,90,000/-. There is clear mention in the Ex.P11 about sum of Rs.40, 000/- paid on 11-01-2017 and sum of Rs.50,000/- paid on 12-01-2017 as advance and balance amount was only Rs.1,00,000/-. If the bill settlement receipt annexed to Ex.P11 is perused, wherein there is mention about cheque no. 003629 (Ex.P1) issued by the accused for Rs.1,00,000/- on 18-01-2017 and payment of sum of Rs.50,000/- on 12-01-2017 through cheque no. 003627 of ICICI Bank and sum of Rs.40,000/- paid on 11-01-2017 through credit card No.3998 of State Bank of India. From this it can be gathered that out of SCCH-24 14 C.C.11369/2021 Rs.1,90,000/- sum of Rs.90,000/- was paid in advance earlier to his discharge from the hospital.
24. So far as the second admission as per Ex;P12 is concerned, out of the hospital bill of Rs.42,000/- , sum of Rs.4,000/- was paid in cash on 21-01-2017 and balance amount of Rs.38,001/- was paid on 29-01-2017 by way of cheque No.010268 of City Bank. So far as payment of second bill is concerned, there is no dispute.
25. So far as the third admission as per Ex.P13 is concerned, the total hospital bill was Rs.90,000/-. As per the bill settlement receipt annexed to discharge summary, sum of Rs.90,000/- was paid on 09-02-2017 by way of cheque bearing No.003632 (Ex.P2) of ICICI Bank.
26. At the cost of repetition it is the definite case of the complainant that Ex.P2 bearing No.003632 for Rs.90,000/- and Ex.P1 bearing No.003629 for Rs.1,00,000- was issued towards the hospital bill mentioned in the Ex.P11. PW.1 during the course of his cross examination dated 20-07-2024 has categorically stated that the disputed cheques were given towards the hospital bill incurred for the first admission dated 08-01- 2017 to 18-01-2017 and that the entire hospital bill SCCH-24 15 C.C.11369/2021 incurred for the second and third admission was cleared by the accused. After conclusion of the cross examination of PW.1, the complainant has recalled the evidence of P W.1 and has got marked some additional documents as Ex.P11 to Ex.P13. Thereafter PW.1 was further cross examined on Ex.P11 to Ex.P13. It is during the further cross examination , the PW.1 has deposed that Ex.P2 for Rs.90,000/- was given towards the hospital bill incurred during the third admission and the said cheque is also is got dishonored.
27. Though the PW.1 throughout his cross examination has deposed that the disputed cheques are issued towards the payment of hospital bill incurred during the first admission and though at the later stage the PW.1 has deposed that Ex.P2 was issued towards the hospital bill incurred towards the third admission but a during the cross examination of DW.1, the learned counsel for complainant at page no.2 para no.2 again has posed suggestion to the effect that " ಮೊದಲ ಬಾರಿಗೆ ದಾಖಲಾದ ಸಂದರ್ಭದಲ್ಲಿ 1,90,000 ಆಸ್ಪತ್ರೆಯ ಬಿಲ್ಲಾ ಗಿದ್ದು ಅದನ್ನು ನಾವು ಪಾವತಿಸಿಲ್ಲ, ಪಾವತಿ ಬಗ್ಗೆ ಚೆಕ್ಕನ್ನು ನೀಡಿದ್ದು ಮಾನವೀಯತೆ ದೃಷ್ಟಿಯಿಂದ ಪಿರ್ಯಾದುದಾರರು ತನ್ನ ತಂದೆಯವರನ್ನು ಡಿಸ್ಟಾ ರ್ಚ್ ಗೊಳಿಸಿದ್ದು ಸದರಿ ಚೆಕ್ಕು ಅಮಾನ್ಯಗೊಂಡಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ" and thereby again contended that cheques in question were issued towards the hospital bill incurred during the first SCCH-24 16 C.C.11369/2021 admission. When it is proved that out of the bill amount of Rs.1,90,000/- incurred during the first admission, sum of Rs.90,000/- was already paid by way of advance, the question of issuing Ex.P2 towards the discharge of first bill would not arise. If the entire materials placed on record are perused, the complainant is not definite about its own case. The complainant at one breath in the complaint, legal notice, evidence in chief, part of their cross examination and throughout the cross examination of Dw.1 has taken the contention that cheques in question were issued towards the discharge of hospital bill incurred during the first admission and at another breath during the further cross examination of PW.1 has taken the contention that Ex.P2 was issued towards the payment of hospital bill incurred during the third admission. Hence, the complainant has failed to prove that disputed cheques are issued towards the discharge of hospital bill incurred during the first admission and failed to prove that accused was due of cheque amount towards the first admission.
28. Even if it is taken for a while for the sake of discussion, the second contention taken by the complainant during its further cross examination that Exp2 was issued towards the payment of bill amount SCCH-24 17 C.C.11369/2021 incurred during the third admission is concerned , if that being the case when it is the definite case of the complainant that ExP2 was also issued on 18/1/2017 at the time when ExP1 was given, then when the bill amount to the tune of Rs.90,000/- towards third admission was incurred on 9/2/2017, how could the accused issue ExP2 on 18/1/2017 by anticipating his father taking future treatment for the third time in the said hospital and his going to incur medical expenses to the tune of Rs.90,000 towards third admission. Further when the accused stated to have due of Rs.1,00,000/- towards the first admission and in that regard issued cheque as per ExP1, unless and until the said cheque is honored how could the complainant accept the cheque issued for Rs.90,000/- towards the bill incurred during the third admission. The Pw1 during his cross examination has admitted that it is only after clearing the bill amount the patient will be discharged from the hospital. If really the accused was due of the bill amount incurred during first admission, defiantly at the time of the second admission the complainant would have recovered the said amount from the accused and then only they would have discharged the patient. If the entire materials placed on record it can be said that the disputed cheques are not issued towards the payment of SCCH-24 18 C.C.11369/2021 medical bill amounting to Rs.1,90,000/- incurred by the father of the accused for the treatment taken during the period 08-01-2017 to 18-01-2017.
29. At the risk of repetition, it is the case of the complainant that while discharge from the hospital on 18- 01-2017, the disputed cheques were given. The disputed cheques bear the date 23-10-2017. Nowhere either in the complaint or in the legal notice the complainant has stated that the accused has given post dated cheques on 18-01-2017 by mentioning the date 23-10-2017. Hence when cheques in question were issued on 18-01-2017, how could the date 23-10-2017 is mentioned in the Ex.P1 and Ex.P2. Hence, there is full of ambiguities in the case of the complainant which compels this court to disbelieve the case of the complainant and to accept the defense taken by the accused . Hence, it can be said that accused has rebutted the presumption by probablizing the defence taken by him.
30. So far as the service of legal notice is concerned, it is vehemently submitted by the learned counsel that legal notice issued through Speed post is duly served to the accused on 22-01-2018 and having served the notice, the accused failed to give reply. The learned counsel for complainant at this juncture has referred judgment SCCH-24 19 C.C.11369/2021 rendered by Hon'ble Supreme Court in (2007) 6 SCC 555 between C.C Alavi Haji Vs. Palapetty Muhammed wherein it was observed by referring Sec. 138 (b) & (c) of the NI Act that "notice sent by registered post if returned un-served, presumption as to service of notice in such a case raises. There is no need to make averments in the complaint that the service of notice was evaded by the accused or that the accused had a role to ply in the return of notice un served. In view of Sec.27 of General Clauses Act and Sec.114 of Evidence Act, wherein it was held that "For raising presumption as to service of notice in the said situation as in view of S. 27, General Clauses Act and Sec.114, Evidence Act, once the notice is sent by registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected. But complaint must contain basic facts regarding the mode and manner of issuance of notice to the drawer. Mandatory requirement of issue of notice in terms of Sec. 138 proviso (b) stands complied with when the notice is sent in the said manner. However, the drawer can rebut the presumption of service of notice by showing that he had no knowledge that the notice was brought to his address or the address mentioned on the cover was incorrect or the letter was never tendered or the report of the postman was incorrect. Such interpretation would SCCH-24 20 C.C.11369/2021 effectuate the object and purpose for which the proviso to S. 138 was enacted".
31. In the said case, no averment in complaint has been made that notice was sent to the correct address of the drawer of cheque by registered post, acknowledgment due. But returned envelop annexed to complaint showed the said fact. Hence held that the mandatory requirement of Sec. 138 had been sufficiently complied with .
32. Coming to the case in hand, the complainant has produced copy of the legal notice as per Ex.P7, postal receipt as per Ex.P8 and DTDC track consignment receipt as per Ex.P9. The PW.1 has pleaded ignorance whether legal notice is served to the accused or not. As observed supra, it is the case of the complainant that the legal notice is issued through speed post. Ex.P9 produced by the complainant is DTDC track consignment. DTDC track consignment is with respect to if any article is sent through courier. Speed post is a service offered by Indian Post whereas courier service are offered by Private companies like DHL, DTDC, FEDEX etc., Service of speed post can be tracked by using Indian Post Website or SMS or track consignment service. If Ex.P9 is perused, as observed supra, it is DTDC track consignment. The SCCH-24 21 C.C.11369/2021 question of issuing DTDC track consignment for service of article would arise only if consignment is sent through courier. But as per the own case of complainant legal notice was sent through speed post but not through courier so as to produced Ex.P9. Further if Ex.P9 is carefully perused, in the Ex.P9 the name of the consigner is mentioned as "Roshan P Tariker from Goa and the name of the consignee is mentioned as M/s Nava Chethan Hospital, Bangalore. The name of the counsel for the complainant is "Roshan P Tariker". As per Ex.P9, the description of contents sent through courier was "DOX". From the aforesaid document it can be said that the counsel for complainant from Goa has sent some articles to the complainant hospital through courier and receipt for having served the article is produced before this court and marked as Ex.P9. Hence, it can be said that Ex.P9 is no way related to this case and the complainant tried to mis- guide the court to make it believe that legal notice is served to the accused. It is true that the complainant has produced copy of legal notice and postal receipt. But no document to prove that legal notice is served to the accused has been produced. It is true that if legal notice is sent through RPAD to the correct address of the accused then even if postal cover is returned with shara "Left the address" unclaimed, refused etc., presumption SCCH-24 22 C.C.11369/2021 shall have to be drawn u/Sec. 27 of General Clauses Act regarding the due service of notice. But herein legal notice is sent not through RPAD but through speed post. Further complainant has not produced either un-served postal cover or track consignment report to let the court know whether legal notice is served to the accused or if not served for what purpose it has been returned etc
33. In a ruling relied by the learned counsel for accused reported in (2013) 10 SCC 72 between Nishant Aggarwal Vs. Kailash Kumar Sharma, it was observed that " it is only on service of notice and failure on part of accused to pay demanded amount within a period of 15 days, commission of offence u/Sec. 138 stands completed. It is further held that "issuance of notice would not by itself give rise to a cause of action but communication of notice would".
34. Demand notice in cheque bounces case is a crucial legal instrument that initiates the proceedings u/Sec. 138 of NI Act. A defective notice u/Sec. 138 of the NI Act prevents the accused from being found guilty. The complainant must to prove that accused received the notice. The cause of action for filing a complaint arises when the drawer receives the notice and does not make SCCH-24 23 C.C.11369/2021 payment within 15 days. Herein there is no evidence as to when the demand notice issued to the accused is served or returned for any of the reason so as to raise presumption u/Sec. 27 of General Clauses Act.
35. Proviso to Sec.138 of NI Act stipulated that 3 conditions must be satisfied before dishonour of cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented before the bank within a period of six months from the date on which it is drawn, or within the period of its validity, whichever is earlier.
36. The second conditions is that the payee or the holder in due course of the cheque must make a demand for payment of the amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid.
37. The 3rd conditions is that the drawer of such cheque should have failed to make payment of the said amount of money to the payee or as the case may be to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the SCCH-24 24 C.C.11369/2021 satisfaction of all the aforesaid three conditions that an offence u/Sec.138 can be said to have been committed by the person issuing the cheque.
38. Thus giving of notice of demand to the payee within the stipulated period after dishonour of a cheque is one of the necessary conditions for making out of the offence u/Sec.138 of the NI Act.
39. For constitution of an offence u/Sec.138 of the Act, the notice must be received by the accused or there must be deemed service of notice u/Sec.27 of General Clauses Act.
40. Thus the pre-conditions of filing a complaint u/Sec.138 of the Act of sending a statutory notice have not been satisfied. Therefore no cause of action arose in favour of the complainant to file the complaint.
41. So, it has to be necessarily held that, the complainant has failed to prove the alleged guilt against the accused and accused has not committed the offence under Sec.138 of N.I. Act. Consequently, point No.1 is answered in the negative.
SCCH-24 25 C.C.11369/202142. POINT No.2 :- In the light of the reasons on the point No.1 and 2, I proceed to pass the following;
ORDER Acting under Sec. 255 (1) of Cr.PC, the accused is not found guilty of the o/p/u/s 138 read with section 142 of NI Act.
The bail and surety bond of the
accused and surety shall stand
cancelled.
(Dictated to the stenographer directly on computer, corrected and then pronounced by me in open court, on this the 6 th day of January 2025.) (ROOPASHRI) XXII Addl. SCJ & ACJM Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED ON BEALF THE COMPLAINANT P.W.1 : Sri Girish K T SCCH-24 26 C.C.11369/2021 LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 & Ex.P2 : Original Cheques
Ex.P.1(a) & : Signatures of the accused.
Ex.P2(a)
Ex.P.3 to 6 : Bank endorsements
Ex.P.7 : Office copy of legal notice
Ex.P.8 : Postal Receipt
Ex.P.9 : DTDC Track consignment receipt
Ex.P10 : Authorization letter
Ex.P.11 : First admission, Discharge
Summary issued from
Navachethana Hospital, bill and
receipt
Ex.P.12 : Second admission, Discharge
Summary, bills and receipts.
Ex.P.13 Third admission, Discharge
Summary, bills and receipts.
LIST OF WITNESSES EXAMINED BY THE ACCUSED DW.1 : - Ravi Raj LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
-Nil-
XXII Addl. SCJ & ACJM Bengaluru.