Karnataka High Court
Sameer Ahmed vs Muneera @ Umerabegum on 25 January, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
Crl.A. No.100219/2016
BETWEEN:
SAMEER AHMED S/O SAWOODSAB KACHI,
AGE: 39 YEARS, OCC: BUSINESS,
R/A 1ST CROSS, BYALLI PLOTS,
MANTUR ROAD, HUBBALLI, DIST: DHARWAD.
.. APPELLANT
(BY SRI.GOURI SHANKAR MOT, ADV.)
AND:
MUNEERA @ UMERABEGUM W/O IMAMSAB JAKATI,
AGE: 48 YEARS, OCC: HOUSEWIFE,
R/O H.NO.67/1, BINDERGI ONI,
GANESHPETH, HUBBALLI, DIST: DHARWAD.
...RESPONDENT
(RESPONDENT SERVED)
THIS APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. PRAYING TO CALL FOR THE RECORDS, OF THE TRIAL
COURT IN CRIMINAL CASE NO.2449/2014 AND SET ASIDE THE
JUDGMENT OF ACQUITTAL PASSED BY THE LEARNED IST
JUDICIAL MAGISTRATE FIRST CLASS COURT, HUBBALLI IN
CRIMINAL CASE NO.2449/2014 AND CONVICT THE
RESPONDENT HEREIN FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I.ACT.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The complainant in C.C.No.2449/2014 on the file of JMFC-I, Hubballi has come up in this appeal impugning the judgment dated 16.07.2016.
2. The brief facts leading to this appeal are as under:
Appellant herein is the complainant and respondent herein is the accused. Initially the private complaint was filed by the appellant herein in P.C.No.118/2014 under Section of 200 of Cr.P.C. In the said complaint, after recording sworn statement cognizance was taken by the learned Magistrate for the offence punishable under Section 138 of Negotiable Instruments Act and thereafter, it was registered in C.C.No.2449/2014. In the said proceedings, summon was issued to the accused, who entered appearance and pleaded not guilty for the offence alleged against her.3
3. Subsequently, the matter went into trial, wherein evidence was recorded on behalf of the complainant. The complainant examined in all three witnesses. P.W.1 is the complainant himself, P.W.2 is witness to the transaction and P.W.3 is a person by name Srinivas Bhat, Chief Manager of State Bank of India, Hubballi Branch. In support of oral evidence, in all 5 documents were produced and marked as Exs.P1 to P5. On behalf of the accused no evidence was led and no documents were relied upon. However, the accused rested her defence by cross-examining the complainant witnesses to establish that accusation made against her is erroneous.
4. The Court below on appreciation of the pleadings, oral and documentary evidence available on record, observed that the appellant herein has received a cheque from the respondent for a sum of Rs.1,20,000/- bearing No.543232 dated 16.06.2014, drawn on Dena Bank, Hubballi Branch. It is further seen that the said cheque when presented for realization, it has come back 4 with an endorsement 'funds insufficient'. The said dishonour of cheque was informed to the respondent by issuing legal notice, wherein she was called upon to pay the amount due under the dishonoured cheque. It is seen that though notice was duly served on the respondent, she did not reply to the notice and has not paid the amount. In this background the complaint is filed and evidence is adduced.
5. The Court below on appreciation of the pleadings and also evidence of P.W.1 where he would speak in support of the cheque being received from the respondent towards discharge of legally recoverable debt, thereafter, it is supported by P.W.2. The evidence of P.W.3-Chief Manager of State Bank of India would indicate that the cheque which was sent from their bank for realization has come back with an endorsement 'funds insufficient'. In addition to that, the complainant relied upon an agreement which is Ex.P5, wherein the accused and her son had undertaken to pay a sum of Rs.1,20,000/- 5 to the complainant. The Court below in spite of going through all these documents did not accept the transaction as monetary transaction resulting in issuance of aforesaid cheque to the complainant towards payment of legally recoverable debt and by its judgment dated 16.07.2016 dismissed the complaint. Being aggrieved by the same, the complainant has come up in this appeal.
6. Heard the learned counsel for the complainant. Though respondent is duly served, she remained unrepresented. Therefore, this Court secured the lower court records. On going through the same, it is clearly seen that issuance of cheque, which is at Ex.P1 could be linked to the document at Ex.P5, which is executed by the accused and her son agreeing to pay a sum of Rs.1,20,000/- to the complainant under the said document. It is also seen that, in the Court below the accused had taken a technical objection with reference to the seal put on Ex.P1 showing the same as if it is presented for realization on 17.06.2013, which has 6 weighed in the mind of the Court below in rejecting the complaint. However, while doing so, the Court below has not properly appreciated the evidence of P.W.3 who is a Chief Manager of State Bank of India, who would speak about the said document at Ex.P1. According to him, there is a mistake in putting the seal in his branch on Ex.P1. However, he would state that the same is required to be read along with Ex.P2 which is a computer generated endorsement indicating the number of very same cheque when presented for realization returned with an endorsement 'funds insufficient' on 18.07.2014. When these two documents are looked into, putting of seal of 17.06.2013 is a mistake in adjusting the date on the stamp and that by itself would not refer the entire transaction a doubtful transaction. In any event, it is seen that the Court below has not properly appreciated the said document which has resulted in an error being committed in dismissing the complaint, when the material available on record clearly disclose issuance of cheque towards legally recoverable debt.
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7. Therefore, in the facts and circumstances, this Court find the judgment passed by JMFC-I Hubballi in C.C.No.2449/2014 is erroneous and the same is required to be set aside. Accordingly, by allowing this appeal, the judgment dated 16.07.2016 passed in C.C.No.2449/2014 by JMFC-I, Hubballi is hereby set aside. While doing so, the complaint which is filed by the appellant herein is allowed convicting the respondent herein for the offence punishable under Section 138 of N.I.Act and also observe that the respondent-accused to pay a fine of Rs.1,50,000/- within 30 days from the date of receipt of a copy of this order. It is also made clear that, in the event of there being any default in payment of fine amount, the respondent-accused shall undergo simple imprisonment for a period of six months.
Accordingly, this appeal is allowed.
Sd/-
JUDGE MBS/-