Karnataka High Court
Amzad Pasha vs H N Lakshmana on 5 April, 2010
Equivalent citations: AIR 2011 (NOC) 75 (KAR.), 2011 CRI. L. J. 552, 2011 ACD 365 (KAR), 2010 (4) AIR KAR R 756, (2010) 91 ALLINDCAS 886 (KAR), 2010 (91) ALLINDCAS 886, (2010) 2 NIJ 378, (2010) 3 KANT LJ 397, (2010) 3 BANKCAS 574, (2010) 3 KCCR 1950, (2010) 70 ALLCRIC 2, (2010) 4 ALLCRILR 184
" . PROPRIETFOR.
IN THE HIGH COURT OF KABNATAKA AT BANGALORE
DATED THIS THE SEA DAY OF APRIL 2010
BEFORE V
THE HONBLE MR. JUSTICE D'
CRIMINAL APPEAL NO:SO4',':2{Oog' '-- V
ALONG WI'}?1:1L ~' ' '
M1Sc.CRL.2_912/200-9
BETWEEN:
AMZAD PASHA ,
S/O H. K. HUSSAIN _ '
AGED ABOUT 44 YEARS, '
R/O MAIN ROAD, HALA€~LI_1=§. '
MALAVALL1TA1--.L_J1§ ' APPELLANT
[By Sri. A O '
H.N.LAKS1~11\/LANA _
S /O_ NARASIILQHAIAH,
AGED ABOUT 4O_1fBABS,
. LAKSmv:INABAS1MHASwAMY,
E'{NALNGB GOBPORABON,
MAIN HALAGUR,
MA1,AVA.LL1?.jrALUK RESPONDENT
{By Sr:.v:{BMPBGOWDA.B.c. & SR1.L.RA.JA, ADVS.] THIS CRLA. AND iVIISC.CRL.IZ912/2009 ARE FILED if/S 378(4) CR.P.C PRAYING TO SET ASIDE THE ' IMPUGNED JUDGEMENT PASSED BY THE J.M.B'.C.,i\/IALAVALLI EN c.c.No.454/2004 DATED 28.5.2009 - ACQUITTING THE ACCUSED RESPONDENT FOR THE OFFENCE P/U/S 138 OF l\E.E.ACT A1\1i3.._"i?QR SPECIAL LEAVE. RESPECTIVELY.
THIS APPEAL COMING ON FOR ADM1S.+T§iOrJdAI;OPtGe "
WITH MISC.CRL.2912/2009 THIS DAY7.~»----TI_¥{'E "~.COL:'Rfi"
DELIVERED THE FOLLOWING: _.
JUDGMENE ' 8 This appeal C.C.No.454/2004 on I"!-,1.'-die Eiaiavaiii, is directed against order dated 28.5.2009 of the charge offence punishable under Section' 138 Instruments Act, 1881 [for Short 'the Aa~1.
The appellant filed private complaint under fof':Cr.P.C. against the respondent ~ accused aileging' offence punishable under Section 138 of the Act it inter alia contending that the respondent -- accused as firoprietor of Lakshmi Narasimhaswamy Finance "Corporation, Haiagur, approached the complainant for i«/ 3 loan of Rs.4,50,000/~-- and accordingly on 5.6.2004, the complainant paid Rs.4,50,000/-- to the accused as loan and subsequently for repayment of the said Ioadriuthe accused issued post dated cheque dated Rs.4,S0,000/«~ drawn on Mandya District-Cojoperatiife Central Bank Limited, Halagur3__vBranc11 said cheque was presented for encashmentgthe sarnedv was returned unpaid with ba_ni~:er's endorsement 'funds insu_fl"vcient" and in '*-s'pi_tel_ of of notice, the respondent -- aceusedgfailed iaidriount covered under,' the he has committed offence punishable under of the Act.
Uponpdservnice of summons. the accused hefore the learned Magistrate and pleaded not gtiiity foe'vthe:;accnsati0n made against him and claimed it hitnseldfwas PWJ and got marked Exs.P1 to ?17. to During the trial, the complainant examined
4. During his examination under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing against him in the evidence "of the complainant. In defence, the accused himseif as DW.l and produced E2X's'.l)'1.
5. The learned Magistrate, S4on:"appreciat'ion oral and documentary evidentce;i»by the appeal, acquitted the groiinddt that the complainant has faiied_to__ .'theAA-l.Ie§;i.stence of debt and that"iti1e':inoti:fje* is's,Li'ed Section 138 of the Act is notVV"propeil'i3}: to the respondent as such there _was4"no" service of notice on the respondent and V' ., therefore, the oxfflfencevunder Section 138 of the Act is not _ made Being aggrieved by the said judgment of acqiiittai, the appellant ~ complainant has presented thisSAappea.I along with an application for grant of special leave.
6 respondent. In the notice issued by the appellant, the respondent has been described as "H.N.Lakshma1'éoa"»s/0 Narasimhegowda". The same description furnished in the complaint. However complainant filed an appiieation fl correct the father's name of-the re':-spo11deerit'vaec1ised. Thus even according to father's name of the accuse.d"_isA--V:L and not Narasimhegowdar Fro1r1':.th:i.s,:' that the notice said to have Posting was not property resiiondent as admittedly it was it "I-i.N.Lakshmana s/o Narasimhego{ivd_a"d though the accused is S / 0 S.Narasirnhaiah".
. 27 of the Karnataka General Ciauses for deemed service provided the document déisiprojjerly addressed and posted. In View of the fact the notice sent by the complainant was not properly addressed to the respondent, there cannotloe a deemed service of such notice. Therefore, the. Magistrate is justified in holding that has failed to prove one of the offence punishable under Se'ction4Al"3:S'of the 1 it it
10. Reading of rnakes it clear that several of action for the drawee of thev_.cheq'ue.-to fiVlepEa_ The cause of action for file a complaint 'ihe"drawer of the cheque to pay the cheque within 15 days.frornt'th.e:V date of receipt of the notice issued by the nil-apkingl'a"'"dernand for payment of money.
"t};e:'_j.fai1ure on the part of the drawer of the che.que.~ ~ 'pay the amount covered under the dishonoizred cheque Within 15 days from the date of ' service of notice of demand in Writing on the drawer of ~--the cheque is the ultimate factor, which gives cause of 8 action to the drawee of the cheque to file the complaint. Under these circumstances, it was incumbent upon the complainant to have proved the service of notice onruthe respondent -- accused. As admittedly the notice.' Registered Post was not served on the.._.responde_nt '4 accused and since the notice have' by Certificate of Posting xvas. notA.p'roper1vl"
there cannot be a deerned lherefore. the learned Magistrate.l:"isA that the complainant has not:.c-ornpliedpp=withv_ requirement of provision_ of Sectionp Act.
11.V.._g4Pipartl technical defect in the conigplaint, the learned Magistrate has also noticed that the coniplainant has not placed any evidence to show capacity to lend substantial arnounti .o{'.llRs.4,50,000/--. Admittedly, no document 2 V. evidencling the loan transaction has come into existence. 'Therefore, the learned Magistrate is justified in holding 9 that the case of the complainant that he had lent Rs.4,50,000/~ to the respondent is highly improbable and not acceptable. The learned Magistrate hcasfialxso noticed that according to the complainant, _ was paid to the accused in the presenceof person_s "
namely Jakir Hussain and Ram'a1in;gegoW'da'.~ for the reasons best knowr'{_to~..the none ofwi"
these witnesses were examlned"~.._befofe' --.the,E learned Magistrate. Therefore; a -- .th_6_t '-Magistrate has rightly drawing' against the compla1na.nt;l'tfgg.,_It«_ _' noticed by the learned Magistrdatel that» of the Very cheque, the colngplainant Vtfiled a civil suit in O.S.No.85/2004 on filebofjvjtlie Civil Judge (Sr.Dn.), Maddur which was later«lAre§'n'ti_rnbered as o.s.No.68/2006 on the tile of the Ciel} J"ti:dge"V'{Sr.Dn.), Malavalli. The copies of the plaint, thiegevvidence of the piaintiff therein and the judgment passed in the said suit have been produced by the accused and marked as Exs.D.4 to 13.6. 10
12. As could be seen from Ex.D.6, during the pendency of the said suit, the appellant obtained a sale deed from the respondent ~ accused for sale fofptan agricultural land for a consideration of the said amount has been adjusted toward.sV:A'_t:l1V¢ R due to him under the cheque Therefore, he claimed, » ' - ._ the A V " . .l " ; Nevertheless, it was respondent ~ accused who was that on the same datephe another sale deed in faVoii'r.'~pf_H..pR'.«1$§ag:_araj S / 0 Ramaiah in respect of a house »._prope1'*ty entire sale consideration of Rs»,-;€§§,'l6..,LO0(l/'>.. heen taken away by the appellant .l:lthiat...vthe suit filed by him is compromised. plaintiff did not concede the said fact'. "--llltirnately, the 'trial Court dismissed the suit holding' that the plaintiff has received the entire amount the matter has been settled. Against the said if wjudgment, the appellant herein filed an appeal before 1'3 ll the learned District Judge at Mandya in R.A.No.88/2007 and the said appeal came to be dismissed by judgment dated 4.4.2008 and copyvg'of.gthe said judgment is marked as Ex.D.7. It is the appellant that he has filed further ., the said judgment. Thus :.:slujitl'.r_fil,ed.:
complainant him for I'€CO,'£ €}fy of" amou'nt:'_coviered_l"e. under the cheque has it has become final holding the has received the amount covered under~--.t,he 'eheq'u°e_. From this, it is manifestly:Vthat.,:th_e appellant has received the entire lar.nloiint'=.-- covered under the che4qt1'ei..along some interest and in spite of the .Vlj4Wanted to pursue the complaint filed for under Section 138 of the Act.
Having regard to facts and circumstances of the case, I do not see any error committed by the llllearned Magistrate in acquitting the accused of the