Bangalore District Court
Kalavathi vs M.G.Srinivasaiah on 5 March, 2025
KABC010136162023
IN THE COURT OF THE LVI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 57)
:Present :
Sri. Jai Shankar, B.Sc., LL.M.,
LVI Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 05th Day of March, 2025.
Crl. Appeal No.685/2023.
APPELLANT Smt.Kalavathi
W/o Sri.Rajanna
Aged about 48 years
C/o Sri.Venkatesh
R/at No.35/18, Old No.34,
Near Srinivasa Kalyana Mantapa
10th Main Road, BSK III Stage,
Opp. Sri.Subramanyeshwara Swamy
Temple, Ittamadu,
Bengaluru -560 085
(By Sri.N.M.P. Advocate)
Vs.
RESPONDENT Sri.M.G.Srinivasaiah
S/o Sri.Kempe Gowda
2 Crl.A.No.685/2023
Aged about 64 years
R/at No.40, 19th Cross Road,
T.G.Layout, Ittamadu
Banashankari III Stage,
Bengaluru -560 085.
(By Sri.S.M. Advocate)
:JUDGMENT:
This appeal is preferred by the appellant/accused under Sec.374(3) of Cr.P.C challenging the judgment dated 29.04.2023 passed by the learned XII Additional Judge and Additional Chief Metropolitan Magistrate, Bengaluru, Small Causes Court, Bengaluru in C.C.No.8328/2021 whereby the trial court while holding the appellant guilty of having committed the offence punishable under Sec.138 of N.I. Act convicted and sentenced him to pay fine of Rs.2,15,000/- in default to undergo simple imprisonment for a period of six months and to pay compensation of Rs.2,10,000/- to the complainant out of the fine amount.
3 Crl.A.No.685/2023
2. Appellant is the accused and the respondent is the complainant before the trial court. The rank of the parties in this appeal hereinafter referred to the same rank as assigned to them before the trial court for the sake of convenience.
3. Precisely, the facts of the case as emerge from the record are that the complainant lodged complaint before the trial court against the accused by alleging commission of offence under Sec.138 of N.I. Act stating that the complainant and accused were good friends, neighbors and are flower vendors. During November 2018 the accused had approached the complainant for hand loan of Rs.3,00,000/-. The complainant had lent a sum of Rs.3,00,000/- to the accused in the month of November 2018 and the accused promised to return the same within 6 months. After lapse of said period, the accused did not repay the loan amount and requested for further time to repay the same. Towards repayment of 4 Crl.A.No.685/2023 the said loan amount, the accused issued two cheques bearing Nos.163713 and 163714 dated 25.01.2021 for a sum of Rs.1,00,000/- each drawn on State Bank of Mysore, Hanumagiri Branch, Bengaluru. When the said cheques were presented through his banker, they were dishonored for the reason "cheque invalid". In spite of issuance of legal notice dated 11.02.2021, the accused has not paid the amount due under the cheques. As such, the accused has committed the offence punishable under Sec.138 of N.I.Act.
4. After filing of the complaint, the trial court took cognizance of the offence and after that recorded the sworn statement of the complainant and then registered the case in C.C.No.8328/2021. Thereafter, the accused was secured and her plea was recorded. She has pleaded not guilty and claimed to be tried. Then, to prove his case, the complainant has examined himself as P.W.1 and got marked 10 documents as Ex.P.1 to 10. 5 Crl.A.No.685/2023 Thereafter, the trial court has recorded the statement of accused under Sec.313 of Cr.P.C. The accused has denied the incriminating circumstances against her. After that, the accused has examined herself as D.W.1 and got marked 1 document as Ex.D.1. Thereafter, the trial court on the basis of the material placed before it by the respective parties found the accused guilty of the offence punishable under section 138 of N.I. Act and accordingly, convicted and sentenced the accused as per the description given herein above.
5. The accused being aggrieved and dissatisfied with the aforesaid judgment of the trial court has preferred this appeal praying therein to set aside the same. The grounds of appeal urged in the appeal memorandum are as follows:-
That the judgment and order passed by the trial court is unsustainable in the eye of law. The trial court has not properly looked into the facts of the case. The 6 Crl.A.No.685/2023 judgment and order passed by the learned magistrate is bad under law. The complainant and his Counsel have not signed the legal notice. The complainant states that he has sent 3 legal notices as per Ex.P.4 to 6, but only Ex.P.3 is produced. The notice was not served on the accused. Different addresses are shown in Ex.P.7 to 9. In Ex.P.10 it is mentioned that the courier is received by one Manjula. The complainant has not mentioned about the nexus between the accused and the said Manjula. In Ex.P.9 postman has affixed the seal for two times and shara mentioned is unbelievable. As such, legal notice is not served on the accused. The said fact is not properly appreciated by the learned Magistrate. As such, the judgment passed by the learned Magistrate is bad under law. The accused has got marked Ex.D.1 Aadhar Card to prove her correct address. The trial court has not considered the same. There is no legally enforceable debt 7 Crl.A.No.685/2023 against the accused. On all these grounds, the accused has prayed to set aside the judgment.
6. I have heard the arguments of both sides and perused the material available on record vis-a-vis reasoning assigned by the trial court. Now the points that arise for my consideration are as follows:
1. Whether the trial Court has committed an error by holding the complainant has proved the guilt of the accused for the offence punishable under section 138 of N.I.Act?
2. Whether the judgment of the trial Court suffers from any illegality or irregularity and as such calls for interference by this Court?
3. What order?
7. Having regard to the arguments heard and the materials on record, I answer above points as hereunder:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
8 Crl.A.No.685/2023
Point No.3 : As per the final order,
for the following:
REASONS
8. POINTS No.1 & 2 : Since these two points are interconnected to each other they are taken together for discussion in order to avoid repetition. It is the case of the complainant that the accused had borrowed loan of Rs.3,00,000/- from him and towards repayment of the same she has issued Ex.P.1 and 2 cheques. When the said cheques were presented to the bank, they were dishonored for the reason "Invalid cheques". In spite of issuance of legal notice dated 11.02.2021, the accused has not paid the amount due under the cheques. As such, the accused has committed the offence punishable under Sec.138 of N.I.Act.
9. In order to prove the charge levelled against the accused, the complainant has got examined himself as P.W. 1 and he has reiterated the above facts in his 9 Crl.A.No.685/2023 examination chief. In support of his oral evidence, he has relied upon the documents marked as Ex.P.1 to 10. Ex.P.1 and 2 are the original cheques, Ex.P.2(a) and 2(b) are the Bank endorsements, Ex.P.3 is the copy of legal notice, Ex.P.4 to 6 are the postal receipts, Ex.P.7 to 9 are the postal covers and Ex.P.10 is courier acknowledgment.
10. The accused has denied the case of the complainant and she has contended that she had borrowed loan of Rs.10,000/- from the complainant and at that time she had given Ex.P.1 and 2 cheques. Though, she had cleared the said loan, the complainant has filed a false case against her.
11. Before discussing the case on merits, it is necessary to decide about the maintainability of the complaint as it is argued by the Counsel for the accused that since the cheques marked as Ex.P.1 and 2 are dishonored for the reason "cheque invalid", the offence under Sec.138 does not attract. During the course of the 10 Crl.A.No.685/2023 arguments the Counsel for the accused argued that since the cheques are dishonored as invalid cheques, the complaint is not maintainable in law and the trial court has wrongly convicted the accused. In support of his evidence he has relied on the decision of the Hon'ble High Court of Allahabad in which in the case of Archana Singh Goutam V/s State of U.P. in application under Sec.482 No.9536/2024 dated 05.06.2024 it is held that, "If the cheque is dishonored for the reason that it is invalid, the offence under Sec.138 does not attract". By relying on the said decision the Counsel for the accused prayed to set aside the order of conviction. On the other hand, the Counsel for the complainant argued that even if the cheque is dishonored as invalid, the offence under Sec.138 of N.I.Act attracts and the trial court has rightly convicted the accused.
12. I have perused the records. It is not in dispute that Ex.P.1 and 2 cheques are dishonored for the reason 11 Crl.A.No.685/2023 "cheque invalid". A shara is made by the bank on the back side of the same. The said cheques are that of State Bank of Mysore. They have been presented to State Bank of India and then they have been dishonoured. State Bank of Mysore merged with State Bank of India in the year 2017. A circular was issued that the cheques of State Bank of Mysore are not valid from 01.04.2018. Because of the said reason, Ex.P.1 and 2 cheques have been dishonored for the reason "cheque invalid". In the decision relied on by the Counsel for the accused which has been published in SCC Online Times quoted above it is clearly held that if the cheque is dishonored for the reason that the cheque is invalid, the offence under Sec.138 does not attract. In another decision reported in 2024 SCC Online AP 5115 in the case of Ganta Kavita Devi and others V/s State of Andra Pradesh also it is held that " If the cheque is dishonored for the reason that it is invalid, the offence under Sec.138 of N.I.Act does not 12 Crl.A.No.685/2023 attract". In the said case, the cheque of State Bank of Hyderabad was issued and the said bank was merged with State Bank of India and as such, the cheque dated 20.09.2021 was dishonoured for the reason cheque invalid. The facts of this case are similar in nature. As such, in view of proviso to Sec.138 (a) since Ex.P.1 and 2 cheques are dishonored for the reason "cheque invalid", the offence under Sec.138(a) does not attract and as such the accused has to be acquitted. The trial court has failed to consider the said fact and has wrongly convicted the accused for the offence under Sec.138 of N.I.Act. As such, it is necessary to interfere with the judgment and order of the trial court and to set aside the same. Hence, I answer points No.1 and 2 in the Affirmative.
13. Point No.3: In view of my findings on point Nos.1 & 2 above, I proceed to pass the following: 13 Crl.A.No.685/2023
ORDER The appeal preferred by the appellant/accused under Section 374(3) Cr.P.C. is hereby allowed.
Judgment dated the 29.04.2023 passed by the learned XII Additional Judge and Additional Chief Metropolitan Magistrate, Bengaluru, Small Causes Court, Bengaluru in C.C.No.8328/2021 is hereby set aside.
Consequently, the accused is acquitted of the offence punishable under Sec.138 of N.I.Act. The bail bonds executed by the accused and her surety stands cancelled.
The fine amount if any deposited by the accused shall be returned to her after appeal period is over.
14 Crl.A.No.685/2023
Send back the records to the trial
court along with a copy of this
Judgment.
(Dictated to the Stenographer, typed by her directly on computer, then corrected and pronounced by me in the open Court on this the 05th Day of March, 2025) (Jai Shankar) LVI Addl.City Civil & Sessions Judge, Bengaluru.15 Crl.A.No.685/2023
Judgment pronounced in open Court (Vide separate order) ORDER The appeal preferred by the appellant/accused under Section 374(3) Cr.P.C. is hereby allowed. Judgment dated the 29.04.2023 passed by the learned XII Additional Judge and Additional Chief Metropolitan Magistrate, Bengaluru, Small Causes Court, Bengaluru in C.C.No.8328/2021 is hereby set aside.
Consequently, the accused is
acquitted of the offence
punishable under Sec.138 of
N.I.Act. The bail bonds executed
by the accused and her surety
stands cancelled.
16 Crl.A.No.685/2023
The fine amount if any deposited
by the accused shall be returned
to her after appeal period is over.
Send back the records to the
trial court along with a copy of
this Judgment.
LVI Addl.City Civil & Sessions
Judge, Bengaluru.