Karnataka High Court
Manjunath Ganapati Hegde vs Yeshawant P Mangarshi on 30 October, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
CRL. REVISION PETITION NO.2180/2010
BETWEEN:
MANJUNATH GANAPATI HEGDE
AGE: 50 YEARS, OCC: PRIVATE SERVICE
R/O 28/A, SHIVAKRUPA
10TH MAIN, RPC LAYOUT
VIJAYNAGAR
BANGALORE ... PETITIONER
(By Sri S M KALWAD, ADV.)
AND
YESHAWANT P MANGARSHI
AGE: 55 YEARS, OCC: BUSINESS
R/O AGASEBAGIL
TAL. SIRSI
U.K. DISTRICT ... RESPONDENT
(By Sri MAHESH WODEYAR, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED U/S
397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGEMENT AND ORDER OF CONVICTION DATED
14.12.2009 MADE IN CRL.A.NO.232/2008 PASSED BY THE
COURT OF SESSIONS JUDGE, FAST TRACK COURT-I, U.K.
KARWAR, CONVICTING THE PETITIONER FOR THE
OFFENCE PUNISHABLE U/S 138 OF NEGOTIABLE
INSTRUMENTS ACT, 1881, CONFIRMING THE JUDGEMENT
AND ORDER OF CONVICTION DATED 26.09.2008 MADE IN
C.C.NO.3304/2000 PASSED BY THE COURT OF II ADDL.
JMFC, SIRSI.
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THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Convicted accused is in revision against the judgment in Crl.Appeal No.232/08 confirming rgw conviction of the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act, for brevity) as per the judgment of the trial court in C.C.3304/00.
2. From what the learned counsel on both sides have urged, it is noticed respondent-Yeshwant P.Mangarshi initiated prosecution of the petitioner-Manjunath Ganapati Hegde for the offence punishable under Section 138 on the accusation that accused was acquainted to him for the past 8-10 years and due to such acquaintance, he agreed to lend him Rs.40,000/- on the promise it will be returned within a week. Thus on 17.2.200 he lent Rs.40,000/- to the accused, but he failed to keep up his promise. However, on demand accused issued two cheques bearing nos.009062 009063 dated 30.3.2000 and 20.4.2000 respectively. The cheques on presentation to the bank were dishonoured on 22.7.2000 with the endorsement 3 'insufficient funds.' It necessitated issuance of statutory notice which the accused received on 3.8.2000, but failed to comply with the demand.
3. On the basis of private complaint submitted by him, cognizance was taken and accused was summoned. Accused denied the charge necessitating trial. In the trial that ensued, complainant tendered evidence as PW1 and relied on 8 documents while the accused tendered evidence as DW1 and relied on 2 documents. The main defense of the accused is, there was no money transaction between him and the complainant and he was not liable to pay Rs.40,000/-. As regards the two cheques mentioned by the complainant, accused denied having issued it to the complainant. On the other hand, he contended complainant had barged into his house and taken away those cheques and has misused. In this regard his wife had lodged report about theft of heques which is under investigation.
4. On behalf of the accused, another technical ground urged is, Exs.P1 and P2 are not cheques, but they are withdrawal slips and therefore no action under Section 138 4 of the Act based on dishonour of Exs.P1 and P2 is permissible. Learned trial judge rejected all these contentions and convicted the accused and passed consequent sentence. Assailing it he was in appeal.
5. Learned appellate judge has confirmed the conviction and dismissed the appeal. Against both these judgments, accused is in revision.
6. Learned counsel for the petitioner, at the outset, would contend Exs.P1 and P2 are not cheques but they are withdrawal slips and hence for initiating action under Section 138 of the Act proof of dishonour of cheque is necessary to generate cause of action. To support this contention, he refers to the definition of cheque as found in Section 6 of the Act makes it clear that a cheque should be as defined therein. He submits, Exs.P1 and P2 are withdrawal slips and cannot be treated as cheque. He relies on the evidence of PW2-bank manager who has admitted that Exs.P1 and P2 are withdrawal slips and not cheques. On this ground he submits prosecution is vitiated.
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7. The second ground is, notice under Section 138 of the Act was not served on the accused and therefore conviction is illegal.
8. Responding to these contentions, learned counsel for the complainant submits Exs.P1 and P2 are not withdrawal slips but they are cheques. As regards statutory notice under Section 138 of the Act, he submits Exs.P6 and P7 are postal acknowledgements, one signed by the wife of the accused and the other by the accused himself. He submits, accused has admitted his signature on the cheques, and also that he has received the notice. Therefore there was nothing more to be proved by the complainant. He therefore supports conviction.
9. In view of such technical ground urged by the petitioner's counsel, I have examined Exs.P1 and P2. Ex.P1 reads thus:
CHETANA SAHAKARA BANK NIYAMITA, SIRSI (U.K.) No.009062 PAY................. Yeshwanth Mangarshi ......... OR BEARER RUPEES ....................TWENTY THOUSAND ONLY ................................. Rs.20,000/-6
Similarly Ex.P2 reads thus:
CHETANA SAHAKARA BANK NIYAMITA, SIRSI (U.K.) No.009063 PAY................. Yeshwanth Mangarshi ......... OR BEARER RUPEES ....................TWENTY THOUSAND ONLY .................................
Rs.20,000/-
The question is, whether they are negotiable instruments and could be treated as cheques. What is a negotiable instrument is defined in Section 5 of the Act which reads thus:
'5. Bill of exchange: A 'bill of exchange' is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to or to the order of certain person or to the bearer of the instrument.' Exs.P1 and P2 are in writing. Therefore the first requirement is met. There is an unconditional order by the signatory, i.e. maker of Exs.P1 and P2 directing the bank to pay to the complainant-Yeshwant P.Mangarshi a specified sum of Rs.20,000/-. Exs.P1 and P2 answer the requirements of a bill of exchange.
10. However, petitioner's counsel submitted, the word 'unconditional order' means there should be no condition attached. According to him, the endorsement made by the 7 banker that it should be accompanied by pass book is a condition to enforce Exs.P1 and P2. Thus it is not a cheque. Such contention is undoubtedly misunderstanding the language of Section 5 of the Act. The words 'containing an unconditional order signed by the maker' means no condition to be imposed by the drawer. It does not refer to the banker who is directed to pay the amount. The condition in Exs.P1 and P2 is imposed by the banker and not the maker of the instrument. Therefore such statement is certainly against the phraseology of Section 5 and is, therefore, rejected.
11. Section 6 of the Act. It reads thus:
6. Cheque: A 'cheque' is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.
From the definition, it is clear when a bill of exchange is drawn on a specified banker, it becomes a cheque. In the instant case, Exs.P1 and P2 are drawn on Chetana Co- operative Bank, Sirsi, and therefore it is a cheque within the meaning of Section 6. Hence the contention of petitioner's counsel to the contrary are hereby rejected. 8
12. Besides a sample of withdrawal slip needs reference. It reads thus:
SAVINGS BANK WITHDRAWAL FORM Care: This form is not a cheque. Payment will be refused if the Pass Book Ledger Folio....................... Initials c...........................
does not accompany this withdrawal form.
Date .....................
TO: STATE BANK OF MYSORE Please Pay self Rupees .................................... Rs.................. .......................................................................... and debit the amount to my/our S.B.Account No......................................................... Name of Account Holder ................................
Signature of Account Holder There is a marked difference between a cheque and withdrawal slip. Withdrawal slip is one where the person signing it seeks payment of the amount to himself, whereas Exs.P1 and P2 directs the bank to make payment to the person mentioned therein or to the bearer or order. Therefore even if PW2 says it is withdrawal slip, it does not become one, but meets the requirement of Sections 5 and 6 of the Act and therefore Exs.P1 and P2 should be treated as cheques only.
13. Learned counsel for the petitioner has relied on the decision of the Madras High Court in the case of D.MALLIKA .vs. PANNEER SELVAM (AIR 2008 NOC 1768) where the single Judge of the Madras High Court 9 has taken the view that withdrawal slip is not cheque. The decision of the learned single Judge of the Madras High Court is based on withdrawal slip as prescribed by the Reserve Bank of India. In the instant case, since Exs.P1 and P2 in language are not withdrawal slips, but cheques, the decision is not applicable.
14. With this prelude, we have to consider the merit. As could be seen from the evidence on record, complainant has produced Exs.P6 and P7 describing it as acknowledgements signed by the accused. But on verification it is found Ex.P6 is signed by the wife of the accused who is not a party to the proceedings. No complaint has been lodged against her and therefore the acknowledgement signed by her acknowledging receipt of statutory notice will not permit prosecution against the accused. Ex.P7 is said to be the signature of the accused, but on comparison there is a marked difference. In the circumstances the finding of the trial court that statutory notice has been served on the accused vide Ex.P7 is factually incorrect and against record. However, respondent's counsel has drawn my attention to the fact that accused has admitted having received statutory notice 10 but that does not appear to be clear from the evidence on record.
15. In the circumstances, while rejecting the contention of the petitioner's counsel that Exs.P1 and P2 are not cheques and therefore it could not have generated cause of action, I am of the view the matter requires remand to the trial court to decide based on the evidence already on record whether statutory notice had been served on the accused or not. Only to this limited extent, the trial court is directed to reconsider the matter.
16. At this juncture, respondent's counsel relies on the decision of the apex court regarding service of statutory notice in the case of C.C.ALAVI HAJI .vs. PALAPETTY MOHAMMED reported in LAWS (SC) 2007 -5-100 which lays down the proposition that there is presumption of service of notice under Section 27 of the General Clauses Act. Learned counsel has not examined the circumstances in which the judgment is rendered and the proposition of law. The decision is misquoted. In the present case, we are not dealing with a case of return of notice. We are dealing with a case where the complainant asserts 11 personal service. If it is personal service, then Section 27 does not come into play. Therefore the decision is wholly inapplicable. It is regrettable that such decisions are quoted without examining the facts and proposition of law laid down.
17. However, for the reasons discussed above, conviction recorded by the trial court against the petitioner is set aside. The matter is remanded to the trial court to decide the case after determining whether Ex.P5-notice has been duly served on the accused or not. If the finding is in the negative, then undoubtedly it should result in acquittal of the respondent.
18. In the result, the revision stands dismissed.
SD/-
JUDGE vgh*