Karnataka High Court
M/S Theerth Enterprises, Manvi vs Nusrat Pasha (Lucky) S/O Imamsab on 23 December, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23rd DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.200059/2015
Between:
M/s. Theerth Enterprises, Manvi
By its proprietor
Raghvandra s/o Hanumanthaiah
Age: 44 Years Occ: Business
R/o: Manvi Tq: Manvi
Dist: Raichur - 585 401.
.... Appellant
(By Sri Sachin M. Mahajan, Advocate for
Sri. R.S. Sidhapurkar, advocate)
AND:
Nusrat Pasha (Lucky)
S/o Imamsab
Age: 51 Years Occ: Business
R/o: Farah Colony,
Manvi Tq: Manvi
Dist: Raichur - 585 401.
... Respondent
(By Sri. Basavaraj R.Math, Advocate)
This Criminal Appeal is filed under Section 378 (4) of
the Code of Criminal Procedure praying to admit this appeal,
call for the records of the courts below and set aside the
judgment and order dated 31.03.2015 in C.C.No.383/2011
passed by the learned Civil Judge and JMFC, Manvi and
convict the accused/respondent and imposed fine of double
the amount of the cheque in question and pass suitable
orders to compensate the complainant/appellant by allowing
the appeal.
2
This appeal having been heard, reserved for judgment
and coming on for pronouncement of judgment this day, the
court delivered the following:
JUDGMENT
1. This appeal lays challenge to the Judgment of acquittal passed by Civil Judge & JMFC Manvi in C.C No.383/2011 dated: 31-03-2015 wherein the accused is acquitted by the trial court for the offence punishable under section 138 of Negotiable Instrument Act 1881 (hereinafter shortly referred as "NI Act".)
2. The appellant was the complainant and respondent was the accused before the trial court. For the purpose of convenience the parties will be referred in this Judgment as per their respective ranks before the trial court.
3. The complainant was running a business of selling rice in the name and style as M/s Teerth Enterprises. The accused placed an order for 100 quintals of rice at the rate of Rs.3000/- per quintal. As per the order placed on 19-03-2009 towards the 3 repayment of the said amount the accused issued a cheque dated: 18-04-2009 drawn on Syndicate Bank Manvi branch Manvi for a sum of Rs.3,00,000/-. When the cheque was presented to Bank the same was reurned dishonored with endorsement 'insufficient funds" on 04-07-2009. Then the complainant issued demand statutory legal notice on the same day. The accused did not comply the demand. Hence he lodged a complaint to take action against the accused for the offence punishable under section of 138 of NI Act.
4. The accused appeared before the trial court.
5. Thereafter words the learned J.M.F.C. recorded the Plea by putting substance of accusation to accused for the offence punishable under section 138 of NI Act. The accused pleaded not guilty and claims to be tried.
6. The complainant got examined himself as PW.1 and produced ten documents as Ex.P.1 to 4 Ex.P.10. Accused got examined himself as DW.1. No doucments were marked for accused.
7. After hearing both the sides the learned trial Court acquitted the accused. Aggrieved by the same, this appeal is preferred on the following grounds
a) that the findings of the Magistrate that two legal notices were issued by the complainant, on the basis of subsequent legal notice the complaint is not maintainable is erroneous.
b) the observation of the trial court that Ex.P.1 invoice does not bear the signature of the accused is baseless and erroneous.
c) the complainant has proved all the ingredients of section 138 of N.I Act. The issuance of cheque is clearly admitted by the accused. There is no proper appreciation of evidence in the right perspective which has resulted in wrong acquittal.
5
With these main grounds the complainant prays to set aside the Judgment of acquittal and convict the accused.
8. Heard Sri.Sachin M Mahajan learned counsel for appellant and Sri.Basavaraj R. Math learned counsel for respondent.
9. The learned counsel for the appellant argued that, the entire acquittal is based on wrong assumption that, the date of issue of statutory notice is 03-07-2009. In fact Ex.P.4 intimation given by the Bank to the complainant is on 04-07-2009. Ex.P.5/notice clearly indicates the date of issue of statutory notice as 03-08- 2009, Ex.P.6 and Ex.P.7 postal receipts in respect of sending of said notices are also dated: 03-08-2009 the postal seal on Ex.P.8 is also dated: 03-08-2009. So the learned counsel argued that, the trial court wrongly calculated the limitation period without reference to the contents of the notice. The learned counsel further 6 submits that, in the content of the notice itself it is mentioned that the intimation regarding dishonour of cheque was received on 04-07-2009. Therefore simply because the date on notice in Ex.P.9 is mentioned as 03-07-2009 and on under certificate of posting letter Ex.P.4 the date is mentioned as 03-07-2009 it cannot be construed stating that the notice was issued on 03- 07-2009 when the intimation received from the Bank is on 04-07-2009 and the postal receipt and cover clearly indicates the date of sending notice is 03-08-2009, the notice cannot be construed as issued on 03-07-2009. The learned trial court wrongly construed Ex.P.1-Bill/ purchase invoice stating that there is no signature of accused on it. The signature of purchaser will not be there on any invoice or bill. The learned counsel further argued that, the learned Magistrate has not considered the statutory presumption arising in favour of complainant and without considering as to whether the accused has rebutted that presumption or not 7 dismissed the complaint only on the ground that the complaint is time barred. In support of his contention the learned counsel relied upon the following decisions:
1) AIR 2017 Supreme Court 1681 (N.Parameshwaran Unni Vs G.Kannan
2) AIR 1999 Supreme Court 1952 :1999 AIR SCW 1637 NEPC Micon Ltd and others V Magma Leasing Ltd.
3) AIR 2019 Supreme Court 502:
AIRONLINE 2019 SC 20 M/s Sicagen India Ltd. Vs Mahindra Vadineni
10. Against this Sri.Basavaraj R.Math learned counsel for the respondent/accused contended that, the complaint is time barred as statutory notice was issued on 03-07-2009. The complainant has also admitted in his evidence that he has issued two notices one on 03- 07-2009 the other on 03-08-2009. The learned counsel further argued that, when first notice is issued the cause of action arose and the complaint filed after 30 days becomes time barred. The date on the notice 03- 07-2009 and the date in handwriting on Ex.P.5 cannot 8 be said as typing mistake or due to oversight or human error. The learned counsel further argued that there is no evidence that accused was doing any rice business and there is no evidence that, only on a phone call 100 rice bags were sent. The driver of the Lorry who received the bill is not examined. The cheque is issued for civil dispute. The complainant has not adduced any evidence to prove his case. The learned counsel also argued that there is a dispute in respect of land. In support of his arguments learned counsel has relied upon reported in AIR 2019 SC 2496 in case of Birendra Prasad Sah Vs State of Bihar and another at para No.10 it is held as under:
10. In the present case, the facts narrated above indicate that the appellant issued a legal notice on 31 December 2015. This was within a period of thirty days of the receipt of the memo of dishonour on 4 December 2015. Consequently, the requirement stipulated in proviso (b) to Section 138 was fulfilled. Proviso (c) spells out a requirement that the drawer of the cheque has failed to make payment to the holder in due course or payee within fifteen days of the receipt of the notice. The second respondent does not as a matter of fact, admit that the legal notice dated 31 December 2015 was served on him. The appellant has in the complaint 9 specifically narrated the circumstance that despite repeated requests to the postal department, no acknowledgment of the notice was furnished. It was in these circumstances that the appellant issued a second notice dated 26 February 2016. Cognizant as we are of the requirement specified in proviso (b) to Section 138, that the notice must be issued within thirty days of the receipt of the memo of dishonour, we have proceeded on the basis that it is the first notice dated 31 December 2015 which constitutes the cause of action for the complaint under Section 138.
The learned counsel also argued that, there is a dispute in respect of land. With these main grounds the learned counsel prays to dismiss the appeal.
11. I have perused the Judgment of trial court, records of the trial court and appeal Memo.
12. From the above materials, evidence and arguments the point that would arise for my consideration are as under:-
01. Whether the learned trial court has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in cases arising out of 'Cheque Bounce" under Negotiable Instrument Act 1881"10
02. Whether the Judgment passed by the trial court in C.C. No.383/2011 dated:
31-03-2015 is illegal, perverse and needs interference by this court?
13. My answer to the above points is as under for the reasons given below.
14. The undisputed contentions in the case are that, the accused admitted his signature on cheque and issuance of cheque. The contention of the accused is that, he has issued that cheque in respect of civil dispute.
15. The learned Magistrate has though framed a point for consideration as to whether the cheque was issued towards the balance due and same was dishonored on presentation, but the learned Magistrate acquitted the accused holding that, the subsequent notice dated: 3-8-2009 is barred by limitation. Though the accused has also led defense evidence but without considering those aspect and without considering as to 11 whether the presumption arising under section 139 of the Negotiable Instrument Act was rebutted or not, Whether the accused defense evidence probablise his defense or not has acquitted the accused only on technical ground regarding limitation. The learned Judge of trial court simply states that, in Ex.P.1 there is no mention in respect of entire amount due by the accused or whether the accused has taken delivery of rice on credit basis it creates clouds over genuinity of Ex.P.1. The learned trial court strangely observes that on Ex.P.1 invoice there should be signature of accused. The learned Judge of trial court also states that, accused admitted in his cross-examination regarding issuance of cheques, but did not discuss anything what is the lacuna in proving the case by the complainant. The reasons for arriving at such a decision is not forthcoming. Whether the doubt or cloud is cleared by the accused by his evidence or his cross-examination is not at all stated nor it is stated whether the evidence of 12 of accused probablise the defense of the accused that the cheque was given in respect of civil dispute. Therefore, when DW.1 accused has not stated anything as to how and when and under what circumstances the cheque signed by him and came into possession of complainant the trial court reasons are not clear. No reasons are assigned regarding disbelieving the evidence of complainant or believing the defense of the accused. Therefore without considering the settled principles regarding appreciation of evidence in a cheque bounce cases filed under negotiable instrument Act and without giving proper reasons mainly on limitation point the case is dismissed and the accused is acquitted.
16. It is to be seen that, the complainant in his complaint filed before the trial court clearly averred that the cheque given by the accused came to be dishonored for the reasons insufficient funds. The banker of the complainant intimated the same on 04-07-2009 then he issued statutory demand notice on 03-08-2009, same 13 was refused by accused on 04-08-2009. So as the accused did not pay the amount he filed this complaint. He has produced he bank memo, legal notice bill, postal receipts, under certificate of posting and postal acknowledgements. In his oral evidence also complainant has reiterated the same.
17. The trial court after perusing the complaint and the documents taken cognizance and issued notice to the accused. The accused did not challenge the said case against him taking of cognizance and registering on the ground of limitation. Only it appears that taking advantage the typing and writing mistake in Ex.P.8, Ex.P.9 and Ex.P.10 which were sent and returned with postal shara as refused by the accused the trial court came to conclusion that, complaint is barred by time.
18. Ex.P.4 is the complainant banker memo which is dated: 04-07-2009 stating that, the cheque ws dishonored as per the Syndicate Bank slip at Ex.P.3 14 which indicates the reason insufficient funds. In Ex.P.5 he has mentioned the same. Ex.P.6 & Ex.P.7 postal receipts are also dated: 03-08-2009 the postal seal on Ex.P.8 is also 03-08-2009. Ex.P.9 and Ex.P.10 are produced by the complainant himself and those postal covers which are returned with endorsement as refused were opened before the trial court while recording his sworn statement on 26-03-2011 and the said covers are marked as Ex.P.9 and Ex.P.10. the respective postal covers are marked as Ex.P.9(a) and Ex.P.10(a). It is clearly mentioned in Ex.P.9 notice and Ex.P.10 contents of the notice that, dishonoured cheque memo and intimation is dated: 04-07-2009. Ex.P.9(a) and Ex.P.10(a) the postal receipts also indicate that those notices were issued through RPAD on 03-08-2009. The post office Manvi round seal is also there as 03-08- 2009. The postman shara as refused is also dated: 04-08-2009. Therefore, simply because on Ex.P.9 and Ex.P.10 the advocate notice on the top the date is typed 15 as 03-07-2009 instead of 03-08-2009 it cannot be presumed or held that, the said notices were issued on 03-07-2009 itself. On the other hand the contents of the said notice clearly indicates that the dishonour intimation was received on 04-07-2009. The question of issuing statutory demand notice under section 138 of N.I Act arose only after receipt of the dishonour memo by the Bank. Before receipt of the said intimation the complainant cannot send or could not send demand notice mentioning future date as a Bank intimation regarding dishonour of cheque. The endorsement by the postal authorities, the seal of the postal department on cover and postal receipts coupled with contents of the said notice clearly indicates that the notice was sent on 03-08-2009 but not on 03-07-2009. The trial court wrongly interpreted the said aspect and without considering the effect of general clause Act section 27 has come to a conclusion that, cause of action on notice dated: 03--08-2009 is barred by limitation and wrongly 16 held that the accused is to be acquitted for want of cause of action and bar of limitation in filing complaint. It is also stated that, the complainant has not filed any application for condonation of delay. It is also stated that, there are latches which have given benefit of acquittal and acquitted the accused. Such a finding is against the settled principle of law regarding appreciation of evidence. It is true that, when a complainant was asked that there are two notices of different dates as per Ex.P.5 and Ex.P.10, he has to admit it, as the dates are mentioned on it by his counsel wrongly. It is evident that, it is only typographical error or a human error which has crept in putting the date of notice as 03-07-2009 instead of 03-08-2009. But the correct date is 03-08-2009 is proved by the postal cover and receipt containing Ex.P10 and the contents of notice that the dishonour was intimated on 04-07-2009. Therefore, on this aspect the acquittal of the accused is bad in law.17
19. As observed above the trial court shall frame proper point for consideration as to the legally enforceable debt or liability and also frame points for consideration as to presumption arising under section 118 and 139 of Negotiable Instrument Act and also to raise a point as to whether the accused has rebutted that presumption by preponderance of probabilities proves that his defense as probable. Without discussing the evidence of complainant or accused in a proper perspective simply stating there are latches in the complainant's case without stating what are those latches the finding is not tenable or legally sustainable. The trial court has committed a serious error in not appreciating the oral and documentary evidence. Except this limitation point no other points have been answered with reference to settled principle of law in appreciating evidence in case of Negotiable Instrument Act or Cheque Bounce case. Therefore, it is wise to set aside the order of the trial court and to remand the case 18 for fresh disposal of case in accordance with law i.e., to hear both the parties and pass appropriate Judgment by giving reasons and findings both on evidence and the law except on the point of limitation which is admittedly within a period of limitation and held in favour of the complainant by this court.
20. Both the parties are at liberty to urge and argue before the trial court, uninfluenced by any observation made by this court on evidence and other aspect except the question of limitation. The decisions relied by both the sides are not disputed, nor they help the accused in any way in view of filing of complaint well within a statutory period as provided under section 138 of NI Act. With these observations these points are answered accordingly and I proceed to pass the following:19
ORDER Criminal Appeal filed U/Sec.378(4) of Code of Criminal Procedure by the appellant/complainant is allowed.
The Judgment and order of acquittal passed by Civil Judge and JMFC Manvi in C.C No.383/2011 dated: 31-03-2015 is hereby set aside.
The matter is remanded to the trial Court with a direction to the trial Court to hear both the parties and pass appropriate Judgment giving reasons and findings, so far as other points for consideration as referred above in the Judgment except that one which is answered by this Court with regard to complaint being barred by limitation, which is held in favour of the complainant.
Send back the records of the trial court forthwith if any.
Sd/-
JUDGE MNS