Karnataka High Court
Smt S Dil Nar Noor vs Sri K Manjunath on 18 February, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.331/2012
BETWEEN:
SMT. S. DIL NAR NOOR
D/O SRI. HAFIZA NOORNI
AGED ABOUT 29 YEARS
NO.34, NEXT TO NO.24, FIRST FLOOR
10TH A CROSS, KANAKANAGAR,
R.T. NAGAR POST
BANGALORE-560 032.
...PETITIONER
(BY SRI. B.L. ACHARYA, SR.ADV.,
SRI. SHAHUL HAMEED, ADV.)
AND:
SRI K. MANJUNATH
SON OF SRI KUPPAREDDY
AGED ABOUT 32 YEARS
R/AT 162, SAPTHAGIRI NILAYA
8TH CROSS, CIL LAYOUT
CHOLANAYAKANAHALLI
R.T. NAGAR POST
BANGALORE-560 032.
... RESPONDENT
(BY SRI. R. BADRINATH, ADV.,)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 CR.P.C. PARYING TO SET
ASIDE THE ORDER DATED 21.2.12 PASSED IN CRL.
APPEAL NO.903/10 BY THE COURT OF THE P.O., FTC-XIII,
BANGALORE CITY CONFIRMING THE ORDER DATED
29.11.10 IN C.C.NO.21499 OF 08 BY THE XII ACMM,
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BANGALORE AND DISMISS THE COMPLAINT FILED BY
THE RESPONDENT.
THIS CRL.RP HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF ORDERS, THIS DAY,
PRADEEP D. WAINGANKAR J., PRONOUNCED THE
FOLLOWING:
ORDER
This Criminal Revision Petition under Section 397 r/w Section 401 of Cr.P.C., is against the judgment of conviction and sentence of the petitioner/accused dated 29.11.2010 for the offence under Section 138 of N.I. Act in C.C.No.21499/2008 on the file of the XII Additional Chief Metropolitan Magistrate, Bangalore and against the judgment dated 21.02.2012 in Criminal Appeal No.903/2010 on the file of the Fast Track Court-XIII, Bangalore City.
2. The revision petitioner was the accused before the Magistrate and the respondent was the complainant. The complainant and the accused were known to each other since more than 15 years. The accused along with her brother approached the complainant during the month of February 2008 for a 3 hand loan of Rs.4,00,000/- for the purpose of her business and other family necessities. Accordingly, on 03.02.2008 the complainant paid Rs.4,00,000/- to the accused. The accused assured to repay the loan amount within a period of three months and she issued a post dated cheque of Rs.4,00,000/- dated 03.05.2008 drawn on City Bank. The complainant presented the cheque for collection, but it came to be dishonoured with an endorsement "Account Closed" on 07.05.2008. The complainant informed the dishonour of the cheque to the accused by issuance of legal notice on 14.05.2008 both by RPAD and by Under Certificate of Posting. Though the notice was served upon the accused, she failed to reply the notice nor she made payment of the cheque amount. So, a complaint came to be filed against the accused for the offence under Section 138 of N.I. Act.
3. The accused having denied the accusation, the complainant to prove the charge against the accused, examined himself as PW-1 and marked 5 4 documents as per Exs.P1 to P5. The accused got herself examined as DW-1 and produced Ex.D1. Learned Magistrate upon hearing both the learned counsel appearing for the parties and upon going through the evidence on record, by his judgment dated 29.11.2010 convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced her to pay a fine of Rs.4,10,000/-.
4. The accused challenged her conviction in Criminal Appeal No.903/2010 before the Fast Track Court-XIII, Bangalore City. The Presiding Officer of the Fast Track Court upon re-appreciation of the evidence confirmed the judgment of conviction and sentence passed by the Magistrate and consequently, the appeal came to be dismissed.
5. Questioning the legality and correctness of the judgments passed by both the Courts below, this revision petition is preferred.
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6. Heard the learned counsel for both the parties. Perused the records.
7. During the course of the arguments, learned counsel appearing for the petitioner/accused submitted before me that all the mandatory requirements to file a complaint for the offence punishable under Section 138 of N.I. Act are not complied with and therefore, there was no cause of action for the complainant to file a complaint. Both the Courts below have failed to notice the same and thereby the conviction has led to miscarriage of justice.
8. The learned counsel for the respondent/complainant, on the other hand, has argued in support of the judgment of conviction passed by both the Courts below.
9. In view of the submission made by the learned counsel for the petitioner, let me examine as to whether the mandatory requirements of Section 138 of N.I. Act are complied with or not. It is not in dispute 6 that the statutory notice informing the dishonour of the cheque and calling upon the accused to pay the cheque amount was not served upon the accused. On the other hand, it was served upon the mother of the accused as admitted by both the learned counsel appearing for the petitioner and the respondent. Even, if we compare the signature of the accused on the cheque and in the postal acknowledgment, one can easily say that the signature found on Ex.P3(b)-the registered acknowledgment due is not the signature of the accused but it is the signature of the mother of the accused. In this regard, the learned counsel for the revision petitioner/accused placed reliance on the unreported decision of the Supreme Court in Criminal Appeal No.711/2009 arising out of SLP (Crl.No.7828 of 2007) (M.D. Thomas vs P.S.Jaleel and Another) and submitted that the notice served upon the person other than the accused is not a proper service as required under Section 138 (b) of N.I. Act. In the case before the Supreme Court, the notice informing the dishonour of 7 the cheque and demanding the payment of the cheque was served upon the wife of the accused and not on the accused. The Supreme Court held that there is no escape from the conclusion that the complainant- respondent had not complied with the requirement of giving notice in terms of Clause (b) of proviso to Section 138 of N.I. Act. The Supreme Court also held that the High Court overlooked this important lacuna in the case of the complainant and therefore held that the conviction of the accused/appellant cannot be sustained. The facts of the case before the Supreme Court and facts of case on hand are similar if not identical. The notice in this case was served upon the mother of the accused and therefore, it is not a notice in terms of Clause (b) of proviso to Section 138 of N.I. Act. When there is no proper notice in terms of the Clause
(b) of proviso to Section 138 of N.I. Act, there is no cause of action to file a complaint for the offence under Section 138 of N.I. Act. Both the learned Magistrate and the learned Sessions Judge overlooked this 8 important lacuna in the case of the complainant and thereby the judgment of conviction and sentence passed by the Magistrate and confirmed by the Sessions Judge has led to miscarriage of justice.
10. Learned counsel for the respondent- complainant has placed reliance on the decision of the Apex Court reported in (2010) 11 Supreme Court Cases 441 (Rangappa vs Sri Mohan), wherein in head note (A), it has been held as under:
"A. Negotiable Instruments Act, 1881- S.139-Presumption under -Scope of-Held, presumption mandated by S.139 includes a presumption that there exists a legally enforceable debt or liability- However, such presumption is rebuttable in nature - Criminal Trial - Proof - Presumptions-Generally."
11. He has also relied upon the decision of this Court reported in ILR 2012 KAR 4815 (Sri. Prakash @ Jnanaprakash vs. Miss. T.S. Susheela), wherein in head note (B), it has been held as under: 9
"B. GENERAL CLAUSES ACT, 1897- SECTION 27- Meaning of service by post- Service of notice- Proof of - HELD, Mere denial of the addressee not sufficient to rebut the presumption- The entire purpose of requiring notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 139 of the Negotiable Instruments Act. - Since it is not denied by the petitioner that he had appeared before the Trial Court on service of summons, it was always open for the petitioner to have made the payment and to have absolved himself of any criminal liability, if the only contention that is to be addressed was whether there was valid service of notice. Hence, the question of validity of service of notice would not assist the petitioner in his defence. INDIAN EVIDENCE ACT, 1872- SECTION 114-DISCUSSED."
12. The ratio laid down in both the above decisions will not come to the help of the respondent/complainant in any way in support of his case.
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13. For the above reason, the conviction of the accused by both the Courts below for the offence under Section 138 of N.I. Act is liable to be set aside. Accordingly, I pas the following order.
Criminal Revision Petition is allowed. The judgment of conviction and sentence dated 29.11.2010 in C.C.No.21499/2008 passed by the XII Additional Chief Metropolitan Magistrate, Bangalore City, confirmed by the learned Sessions Judge by judgment dated 21.02.2012 in Criminal Appeal No. 903/2010 is hereby set aside.
Sd/-
JUDGE PMR