Karnataka High Court
Dastigir Sab vs L Jayamma on 30 June, 2014
1 Crl.A 1184/12
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JUNE, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.1184 OF 2012
BETWEEN:
Dastigir Sab,
S/o. Peer Sab,
66 years,
R/at Dapparthi Hobli,
Kasaba Hobli,
Gudibanda Taluk,
Chickballapur District. ... APPELLANT/S
[By Smt. S. Taj, Adv.]
AND:
L. Jayamma,
W/o. Ramalingareddy,
89 years,
Dapparthi Grama,
Kasaba Hobli,
Gudibanda Taluk,
Chickballapur District. ... RESPONDENT/S
[Respondent served & unrepresented.]
***
2 Crl.A 1184/12
This Crl.A. is filed u/Section 378(4) of
Cr.P.C. praying to set aside the Judgment and
Order dt. 11.09.2012 passed by the Civil Judge &
JMFC., Gudibande in C.C. No.141/2008 - acquitting
the respondent/accused for the offence p/u/S.138
of N.I. Act.
This Crl.A. coming on for Admission, this day
the Court delivered the following:
JUDGMENT
Heard.
2. The appellant has challenged the Judgment and Order of acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act [hereinafter referred to as "the N.I. Act" for short] on a trial held by the JMFC., Gudibande.
3. The facts reveal that the respondent is said to have availed a loan of Rs.50,000-00 and towards payment of the said sum, she issued a cheque for a sum of Rs.50,000-00. When it was presented for encashment to the bank, the cheque 3 Crl.A 1184/12 returned with endorsement "insufficient funds". The appellant issued a notice to the respondent and as there was no compliance of the demand made, he approached the trial Court with a complaint under Section 200 Cr.P.C., requesting to take action against the respondent for the offence under Section 138 of the N.I. Act.
During the trial, the appellant was examined as P.W.1 and a witness-P.W.2. In their evidence documents Exs.P1 to 6 were marked. The respondent was examined as D.W.1 and a witness- D.W.2 and in their evidence document-Ex.D1 was marked.
The trial Court after hearing learned counsel for the parties and on appreciation of the evidence on record, granted an order of acquittal. Aggrieved by the Judgment and Order, the present appeal is filed.
4 Crl.A 1184/12
4. Learned counsel for the appellant submits that the respondent knowingly issued the cheque- Ex.P1, which was presented for encashment and as it was returned back with endorsement of "insufficient funds", a presumption arises under Section 139 of the N.I. Act and no material is placed on record to rebut the presumption. Hence, she submits that the respondent has committed an act of cheating and the trial Court committed an error in granting the order of acquittal.
5. The appellant is examined as P.W.1 and he admits that cheque-Ex.P1 is not of the individual account of the respondent. The account stood in the name of "Sthree Shakti Sangha". It was a joint account and the said cheque was to be signed by both the President and the Secretary of the said "Sangha". The provisions of section 138 of the N.I. Act requires that the person, who has issued the cheque has an account in his/her name. Admittedly, the account was not in the name of the 5 Crl.A 1184/12 respondent. It's account holder is one "Sthree Shakti Sangha". Though the respondent is concerned with the said "Sangha" as a Secretary, the account was a joint account and in the name of the said "Sangha". Therefore, a complaint under Section 200 Cr.P.C. for the offence punishable under Section 138 of the N.I. Act cannot be maintained. Issuance of the cheque by the person not having an account held by such person may amount to an act of cheating but, certainly not under Section 138 of the N.I. Act. The trial Court having taking into consideration the aforesaid aspect and that the cheque was not signed by both the President and Secretary of the said "Sangha", granted an order of acquittal. I do not find any error or illegality in the impugned Judgment and Order.
Consequently, the appeal fails and it is accordingly dismissed. If the appellant intends 6 Crl.A 1184/12 to have recourse to any other remedy available for any other offence, he is at liberty to do so.
Sd/-
JUDGE.
Ksm*