Karnataka High Court
M/S Dcm And Co vs M Kumara Swamy @ Shiva Kumara Swamy on 8 January, 2010
Cri.A.No.989/2007
_ 1 _
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THXS THE 8TH DAY OF JANUARY 2010
BEFORE
THE HONBLE MR. JUSTICE
CRIMINAL APPEAL NO.939/2O07}"i:""'~5..'_~;...:__f' _
BETWEEN:
M/s. DCM 81 Co..
No.4, D.R.Ha1li
Ranganath Colony
Mysore Road
Bangalore ~ 560 026
Represented by:
Its Managing Partner _E ' _ " ,
M1'. D.\/Wkram V ' " APPELLANT
[By Slji A C.Ré1jAR;L1_111a1f}V,V }'.dV;._of _
M / I3iwak'a1'a- _& EAs':2oc"i-21t€s.}
AND:
M.Km;néi1'a. S\-v3.1'1*1y_ Sh1"'.~'a K1.1ma1*a Sw:«;1my
'~ OS/o ._Si'dd:a1]1g2;1a111 "
A§;«<3dx"abo'i 1:1 4}" . years
P1'£)p"rie1o.1_f '
?v'I/ Kt:stiiI}é1 E;.;i1Le1'p1'ises
Opposite 14()Ta_1;f:k Office
Ne] e1;1}a111;__§a} 51
' V E3e111ge1}o1'é. D t'1'i(~.1,
A A ' 'ggxl'iLJ[V aylyyso
_V -ff.-M,~"V Kus1.1n1.=.1 Entierprises
M M_e_'-i}'1akavi K1.1VC111pLi Road
T{e1je1ji1'1eig211'. I}32'111ga11oI'e ~ 10
.. 'And aiso residing at:
("$253
CrE.A.No.939/2007
_ 2 _
# 665E, Gaiiiesh Rao Layout
Stztnhasliriaigeir
Neiamangala
Bangalore Rural District RESPON[}i3i\I_"i'--«_V
[By Sri H.M.Chidanar1da, Adv. for
M/s. Nandi Law Associates.)
This Criminal Appeal filed ._ Efieetioifif
Cr.P.C. by the Advocate for the appellants ;o'ray»i:1g that.
Hoifbie Court may be pleased to set asideihe judi_;jm'efit anti;
order dated 24.4.2007 passe'd'<--.hy the XlII7_£\dd1.--.CMM.,
Bangalore in C.C.No.29128/2005 ":--1ce';ui_t.tih'g the
respondent./accused for the offei1ee--._ puritshable? under
Section 138 of N.I. Act. * This Criminal Appeal .eoi1i1i-i*{g;"o:j1« :i"vf}fli'v,éiC§_I11iSSiOI1, this day. the Court delivered the .fo_1iowi11g: ' ' " ' ' This 378(4) of Cr.P.C.
by the ce=.n1piaitia:s_'ti- against the judgment and order dated':t4__2>IL.v4V;'2_(j'O.t7" by the XIII Additional _Chief. it iVI~eti'opd'oii-tai_1_____A _ Magistrate, Bai'1ga1oi"e, in "'.C;C}?vEti.2.9i.f2'8/2005 acquittirig the respondent/accused of.'theVoi't'eh'g:;eh7'ounishable under Section 138 of the ' 'Negotiabiet.:I1tisti'ume1'1ts Act ('the NI. Act'). 2}" appellant. -» M/s. DCM 81 Co. represerited by fMan_agiIig Partner filed a private complaint under , _4;'Seet:ior1 200 of Cr.P.C. against one M.Kumai'a Swamy, %;,,,/ Lli'i.A.NO.9l39/2007 _ 3 _ Prciprietoi' of M/ Kusunia Enterprises ailegiiig offence under Section 138 of the N .1. Act inter aiia contending 71".' that the accused used to purchase materiais iike '-1 Washing Machines and Refi-igerators fI'_()_I_i1 V"i:h€VV"
complainant on credit and as 011 20.7.2005, was due in a sum of Rs.5.42,30Gi/rte' and to disch.a1'ge the said liability, J'[fh€"'e1(3CL1$.(3'i,i.iSS:LlE3'd at Cheque bearing N0.0226l£§V"i'e».:d'at.ed for Rs.5,42,800/~ in i'a\r0La:r"'w-(Jf '§;o§;i1§:v1a.i;nant tidiiawii on Development Credit Branch, Bangaloife.----. wheri th'e.V.e{5mp1ainant presented the said "eheq_uef'V"~fO1*_u'e_:fieashme11t;. the same was dish0noL11*eci*-.with 2"; ba11'1s:~e1"s end01'se'me1'1t: 'iiistiffieient "'~Fu11d_s'2. E._eV.'i"here21it.ei--*-;---«the complainant issued a legal v'--i'1bt~ieeto"-the,'accused iiiformiiig him ab(_n.1t dishoiiouring of t'11_e%eh_eC;'Li.e5:and ealled upon him to pay the loan 'amoL1nt1'et3:rJered under the Cheque and in spite of service 0' 'Ct z1_(>)t.'i"ee on the accused, he has failed to pay the Eoan u"'--._ari1§:)L11'1t as such, he has eommitteci an offene<'-3 under :.VSeet;ion 138 of the NI. Act.
L,r:.A.wo.u:swzuu/ LAM ,4 III'
3. I.,ea1'ned Magis1,1*aTe who took cogni7ance of the offence aileged in the complaint, after recording sworn staf;ernent of the complainant, ordered issue_...__ of summons to the accused. Upon semice of surni:'r1c"ns",~.< the accused appeared before the learned Magi'st1'atae: H pleaded not guilty and claimed tc"b'e"{.<17iec1A. f;r1'al, the Managing Paytnel' '"t.1_1e c:'c_r1A1p1ainan~tp"
D.Vik_ram was examined as PWIEA, one*an0.t'f1.er"wiiVness was examined as PW.2 and themdo--cjju:ff1'e_nts we"1*e°Vrnar1-{ed as Exs.P.1 to R122. During"the.=eXa§nii_1ation of the accused under~'S"r;>c_fi'0n:=313 denied all the i11cri111i1ia_tihg ci1'{:'d":ns'i.ana:es__ appearing in the evidence of the pr0se'c,L1t.'i0'n 'wi£.ne'sNses. In defence, the accused "was ..c5<:e1.n1§r:::(1 e:1s'"l'3i'=-A»-'-;*1' and gm the d0cu_n1e1c1t.s marked has The defence of the accused was that 1\/I.Kufnarva. named in the compiairaf accused not fihed proprietor of M/s. Kusuma Ent.erprises and VA f{s;1'1Aat_b_I\}§A.'.Ku111a1*a Swamy is not. the drawer of the cheque the correct: name of the drawer of the cheque is «* S.Sh1'vakuma1'a Swamy and sincire no si;.at,u.1:0ry 1'1()t.ice as \;rr.A.No.td;5wzUU/ _ 5 _ required under Section 138 of the NJ. Act has been issued to him viz., S.Shivak1.1mara Swamy, there was no cause of action for the complainant to file this complaint alleging offence under Section 138 of the NJ. also contended that the cheque in qL1esti(>n "
issued for discharge of any debt er"'i'iabili_ty complainant.
4. Learned Magistrate ai'ter._ h"ea1'ing V ..both 'and on assessment of oral and doc.u'nier_nta'ry evide'nce;v by the judgment under appeal,"h::l'd--'t--h?ai;, f(_:orIr_piainant has not irnp:_eade_d"ti,}e_adrawer=of the cheque as accused and that no Iloticeas Section 138 of the NJ. Act. has been issued' to the drawer of the cheque namely "I_S;:'3hiV{Iak.i;ma:t'a Swamy, who is the proprietor of i\/1',/. _s;5Kus'urr*1,a Enterprises, therefore, there was no cause it of actio11f:.tor"' the cornplainant to file the complaint co' o'ft"ence under Section 138 of the N.I.Act. in of the matter, the learned Niagistrate acquitted respondent/accused. Beiiig aggrieved by the said '7 e Cr1.A.No.939/2007 _5o jiidgmeni. and order of acquittal, the C()1'1}})1EiiI'1al1t has presented this appeal.
5. Upon service of notice of appeal, S.S11ivakLirh'éi.ra Swamy has appeared through his learned (:o1:msei.__'__i' have heard both sides and perused the V' the documentaiy evidence plac,e,d on }reeo'r.d'=.by*».:he:T.A complainant which are i1oe'L-4__seriou_siy disputed dlbyvi Sfihivakumara Swamy, it cleair one S.Shivakun'1a1"a Swaniy M / s.Kusuma Enterprises }'1avi1"2._,£,;§ O1,11Z}€'eS::"O1V'l'€_ 'gat 'VNe'lafnarigala and anot1'1era_ at _Ni'{3:ha,ki:EVl'g_>K1:}\N3l'1"1pLl Road. Rajajinagai', B3.'ngalorej i T he-. v'ol'u_r'r.ii.1_1'ous documeniaiy evidence produced by the__compiaina11t which are not seriously dispuiied'\voLiId.'vi'urt11e1' indicate 'diaii the conipiainam: is the "d_iStfib"e.,toi<:;'"of consumer durables and the said _S.Sl1iv"aktiii12i.f2i Swamy for the purpose of his business haci voepurchased the consumei' durables from the
-.jCohjp'iéiin211o1i: on credit: and as on 20.7.2005, the said "wS.Shivakumara Svvamy was due to the c()mplaii'1a1'1iu to an extent of Rs.5,42,3OO/V. it is also not in serious cri.A.No.939/2007 _ 7 _ dispute that S.Shi.vakumara Swamy as Pi~op.1*iet0.1' of M/s. Kusuma Enterprises had opened a Bank Aeeotirlt in Development Credit Bank. Ra_j21jine1ga1' BvrVa7.heh, Bangalore. The cheque in question which is 1_1:1€i.1-'1--{ed._:
Ex.P.3 admittedly bears the sig11at1,-1'i'*e...'4 S.ShiVal{ume1ra Swamy and it is tJ,_i'awh zi'n"fe.1Voi;3-3' complainant w filffll. N0 cheque are in different. t:ififfe1'ent handwritings which blanks have been filled up from the apparent. that said S.Si1ivaiuin'1srai H issued the cheque in questjori ahid ivl1e1'efO':je'«.;ie is the drawer of the said elieqde wfhile U1€x'C€)fl1p1E1iDaI114 is the drawee of the said Veheque_. "v7£f1'ie"'efifidence on record also further establishes thatithe sa'i'di._ciheque was presented. for (311(Q'.£iShfI1€l1t by the complainant. and the same was djshonoured due to ""ii1sui'E'i_itiency of funds' in the bank aecotmt. Now the '----.':.qL1"(iE';S'f,i()I} is in the light of this adniitted and esiab1.i.shed. :.V'fz1et, whether the offence alleged uncler Section 138 of @,X Cr'1.A.N0.939/2007 _ 8 -
the Ni. Act is made out against the drawer of the cheque. To e1t.t.1*act offence under Section 135:3 oi' the Act, the following conditions should be satisfied:
1) the cheque should have been drawn by i.
an account maintained by him with t.he.b;%:n':i~:er";~.V: « ii] the cheque should have been drawee for discharge of any debt.Qi'*1iebi1ity_:.A" . 2 n '' iii} the cheque rnust have beien'-..p1'esAe'nted._Vttq t"h_:e'~ba'nk within a period of six monthué"'fi':om% the on} which it was drawn or witiiinV~ vaiitiity:
iv) the cheque must have been'i*ét,n.1%n*eei.vi;;_:1paid by the banker on whicllyit insufficiency of funds . ' V) the or the drawee as the case may for payment of the said ambiu'1noney...uby giving a notice in writing to t1]€3igCluf£1'N€1' within 30 days of receipt of " «inxferni1é;1i:i_o11_._from the banker regarding return of the Vunpaid;
vi] ._th_heh such cheque fails to make payment of the arsnounti covered under the cheque to the drawee V *3iithe"'ho1de1' in due course within 15 days of receipt ' fof the said notice;
'uh"-«'tAyii)__:i11e complaint should have been filed within one month thereafter. W C1'l.A.l\lO.S/J39/2007
- 9 -
As noticed above, in the case on hand, the _l'irst: four in.gi'edients have been satisfactorily established namely that S.Shivakuniara Swamy had issued a cheque orithe account held by him with a. Bank towards debt or other liability and the said cheqL1er:: H presented within the period of \"c1lldlfy"£E'.Ii(Zl,:tl1_€ been dishonoured due to [V However, as could be seen in dispute that the statu.t'ory 1»1¢;ti¢§ the proviso (b) t.o Section been issued to one M.KLiinara__}Swarn3€. -ePi*opriet'o1f__.rof M/s. Kusuma Enterprises asis"'e3/id_ye'I'itd'from the copy of the notice - EX.P.5. AS_I4"lO1'iC".CCiVEE.bC)if€~._ ex/"en as per the admitted case of the_corhpiai'1ia.iit, "£1116. proprietor of M/s. Kusuma *.yEnte*1'f§.ris_es is one ..... .S+.Sl1iva1<1J:1_nara Swamy and not i\/i.Kr.,1r1ia_vra. Syvaniy. The drawer of the cheque is also S.Sliival{i1rr1e1r'aSwamy. Therefore, it is clear that the StE1l'1Li'1:Ol"y"l;iQvtfl'C?€ as required under the proviso to Section of l\i.l. Act. has not been issued to the drawer of the cheqiie namely S.Shival<umara Swamy but it has C.r1.A.No.939/2007 _ _ been issued to some other person. According to the cornp1ainani;. notice. was sent to both the outieizs of .i\/I/s.Kusnma Enterprises Le. Neiamangaia Rajajinagar. Even according to the coI11[)i21i11ai1_t;} sent to outlet at Raj ajinagar by registered returned with a postal endorsement Ex.P.8, while the notice addressed Nelamangaia has been delivere'd:T.e"1s issued by Sr.Superintendent_'oi"i§Ao'st:s.\..asi'per It is also the case of the yzotices were sent undi-----1: both the outlets as per notices according to the (:(m1piainant--...xwere -prestznieci to have been delivered to As-sumiiig that the notices sent by V'--v.Cei*t1ficate'i :V()Vi:j"'E9c)si:iIig have been delivered to the add1»'e'ssee,"e-since it is addressed to Mr. M.Kumara .,_"Swamy~ only presumption is that it is delivered to V' "E\?_i.VK_u4rAnar21. Swamy and not S.Shi.vakumara Swamy, the udrawer oi" the cheque. Even according to the postal /endorsement as per Ex.P.7'. the 1'E?§_{iSiL(El'(?C1 ietter has p Cr1.A.No.939/2007 _ 11 _ been delivered to lVIr.'i\/I.K1.tn1ara Swaniy, Proprietor, M/s.Kusuma Enterp1"ises at Nelamangala. in View of the fact that Mr. M.Knrnara Swarny is not the proprietor of M/s. Kusuma Enterprises, the er1d0i'semeijit..jissued"
by the postal department as per Ex.P.7 the complainant in establishing as required under the proviso to Section Act has been sent to the Qf In addition. to this, in VhAeto1'e the learned Magistrate, the was shown as M.Kuomara"'Swa1:a3y and'no't'~S;Shivakumara Swarny. in View of the tacit.thatthteistatutory notice as required under the }va'I'()f»i'iSf)v to 138 of the N.I. Act has not __and Vdeiivered to the drawer of the cheque hnarneij/_ 'S,Shivna};un1a1'a Swamy, in my opinion, the learned is justified in holding that there was no cause of action for the complainant to present a aileging offence under Section 138 of the NJ. .A<:t_5age1i:'1st: the drawer of the Che.t;11e. Moreover, the «~fJ<3I'S()11 named as accused in the complaint is not the E Cr1.A.N0.939/2007
- VVV drawer of the cheque. 'i'here.f0re, I no error having been committed by the Iearr1<~:d Magist:1'a1e in acqhri-igfllgg the respondeni:/accused on this ground. there are no merits in this e1})_;)cj;;E. A_c_::c"rO':"c1i11gIy. "£113 appeal is dismissed.
M 3;