Karnataka High Court
S P Aravind vs L Mahadevappa on 17 January, 2023
Author: P.N.Desai
Bench: P.N.Desai
-1-
CRL.A No. 1097 of 2011
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 1097 OF 2011
BETWEEN:
S.P.ARAVIND,
S/O. PRABHAKAR,
AGED ABOUT 42 YEARS,
S.P.M. ROAD,
SAGAR-577 401,
SHIMOGA DISTRICT.
...APPELLANT
(BY SRI. R. GOPAL.,ADVOCATE)
AND:
Digitally signed
by NAGARATHNA
M L. MAHADEVAPPA,
Location: HIGH
COURT OF
AGED ABOUT 53 YEARS,
KARNATAKA
S/O. S.M.NINGAPPA,
EMPLOYEE OF THE OFFICE OF
ASSISTANT COMMISSIONER,
SAGAR-577 401.
...RESPONDENT
(BY SRI. DR. T. SOMASHEKAR, ADVOCATE)
THIS CRL.A. IS FILED U/S. 378(4) CR.P.C BY THE ADV.,
FOR THE APPELLANT PRAYING TO SET ASIDE THE ORDER
DT:26.8.11 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC,
SAGAR IN C.C.NO.124/2010 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
CRL.A No. 1097 of 2011
JUDGMENT
This appeal arises out of the judgment of acquittal passed by the learned Senior Civil Judge and JMFC, Sagar dated 26.08.2011 in C.C.No.124/2010 wherein the Trial Court acquitted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short hereinafter referred to as 'N.I.Act').
2. The appellant was the complainant and the respondent was the accused before the Trial Court. They will be referred as per their respective ranks held before the Trial Court in this appeal for convenience.
3. The complainant filed a complaint under Section 200 of Code of Criminal Procedure, (for short hereinafter referred to as 'Cr.P.C.) against the accused for the offence punishable under Section 138 of N.I. Act. It is alleged by the complainant that the accused had borrowed a sum of Rs.20,000/- for his domestic purpose on 11.09.2004. Thereafter, on several occasions, the complainant demanded the accused to repay the amount. But the accused did not -3- CRL.A No. 1097 of 2011 repay the same. The accused has issued a cheque bearing No.618152 dated:08.11.2004 for repayment of the amount borrowed from the complainant. Hence, the complainant presented the cheque given by the accused to the bank for encashment. But the said cheque was returned dishonoured with an endorsement by bank stating that 'insufficient funds' in the account of accused. Therefore, the complainant issued a statutory demand notice to the accused. Despite the service of legal notice, the accused did not pay the amount. Hence, the complainant filed the complaint.
4. In order to prove his case, the complainant got examined himself as PW.1 and got marked six documents as Exs.P1 to P6. The accused got examined himself as DW.1 and one Shayamanna was examined as DW.2, but no documents were marked on behalf of the accused/respondent. After hearing the arguments, the learned JMFC acquitted the accused. Hence, this appeal assailing the judgment of acquittal.
-4-CRL.A No. 1097 of 2011
5. Heard Sri. R.Gopal, learned counsel for the appellant and Sri. Dr. T.Somashekar, learned counsel for the respondent.
6. Learned counsel for the appellant argued that the judgment of acquittal passed by the learned JMFC is too technical and the same is not sustainable in the eye of law. The Judgment is erroneous, capricious, against the material on record, hence needs to be set aside. It is further contended that the complainant has filed an affidavit evidence, produced the cheque, bank endorsement. Demand notice was served on the accused. The defence of the accused is that he has borrowed the amount from the complainant, but he contends that he has only borrowed a sum of Rs.5,000/- and he is due balance amount of Rs.300/- only. Without appreciating the evidence on record, the learned JMFC held that there is a defect in the notice issued by the complainant and acquitted the accused which is perverse.
7. It is further argued that Ex.P5 is the legal notice which was actually served on the accused and in Ex.P5, a -5- CRL.A No. 1097 of 2011 sum of Rs.20,000/- is mentioned and only the said amount is demanded by the complainant. That aspect was not considered by the learned JMFC. The learned JMFC has not considered Ex.P5, wherein at paragraph No.3, a correction is carried out and Rs.25,000/- is corrected as Rs.20,000/-, but the complainant has not affixed his signature/initial to the correction. In the notice that was sent to the accused, the correct figure was mentioned and the same amount was demanded, but the corrected notice copy was not produced by the accused. Earlier notice/Ex.P3 was inadvertently marked without correcting the amount. Even in Ex.P3/legal notice, at first paragraph the said amount is mentioned as a sum of Rs.20,000/- only. It is also mentioned in the notices that the cheque was issued for Rs.20,000/- only. But in last paragraph of Ex.P3/notice, by inadvertently the figure is wrongly typed as Rs.25,000/- instead of Rs.20,000/-, and same is not corrected. Hence, such notice cannot become invalid in the eye of law.
8. Learned counsel argued that the contents of notice should be read as a whole. Only by referring to the -6- CRL.A No. 1097 of 2011 typographical error at one place regarding the amount in last paragraph of the notice, it cannot be said that the notice is defective in nature. In support of his arguments learned counsel for the appellant relied on the decision of Hon'ble Supreme Court in the case of Central Bank of India and another Vs. Saxons Farms and others1 wherein the Hon'ble Supreme Court has considered the requirement of service of notice of demand in Clause (b) of the proviso to Section 138 of N.I.Act. He also relied on another decision of the Hon'ble Supreme Court in the case of Suman Sethi Vs. Ajay K.Churiwal and another2 wherein the Hon'ble Supreme Court has discussed as to how the notice is to be construed and held that, the notice cannot be faulted if in addition to "cheque amount" any other sum by way of interest, cost etc., is separately indicated. Learned counsel also relied on another decision of the Hon'ble Supreme Court in the case of K.R.Indira Vs. Dr. G. Adinarayana3, 1 AIR 1999 SC 3607 2 AIR 2000 SC 828 3 AIR 2003 SC 4689 -7- CRL.A No. 1097 of 2011 wherein the Hon'ble Supreme Court held that the consolidated demand notice provide sufficient information envisaged by the statutory provision and there was a specific demand for the payment of the sum covered by the cheque disonoured, mere fact that it was a consolidated notice, and/or that further demands in addition to the statutorily envisaged demand was also found to have been made may not invalidate the same. Learned counsel also relied on the judgment of Hon'ble Supreme Court in the case of Samittri Devi and another Vs. Sampuran Singh and another4, wherein the Apex Court discussed regarding the presumption that arises in respect of sending the notice under the certificate of posting. Further the learned counsel also relied on the decision of this Court in the case of P.K.Radha Krishnan Vs. Vijayan Nambiar5 wherein this Court again observed regarding presumption arising in respect of sending notice under certificate of posting. With these arguments, he prayed to convict the accused by allowing this appeal.
4. (2011) 3 SCC 556
5. ILR 2005 KAR 4486 -8- CRL.A No. 1097 of 2011
9. Against this learned counsel for the accused argued that the judgment of acquittal passed by the Trial Court is legal and it is based on settled principles stated by the Hon'ble Supreme Court and this Court. Learned counsel argued that the complainant has not complied the provisions of Section 138(b) of the N.I. Act, while sending the demand notice. The learned JMFC has also referred principles stated by the Hon'ble Supreme Court in the case of K.R.Indira6 referred supra and has rightly come to the conclusion and acquitted the accused. The complainant has relied on the cheque - Ex.P1 which was issued for a sum of Rs.20,000/-. The complainant has also stated in first paragraph of the demand notice that, the accused borrowed a sum of Rs.20,000/-, but in next paragraph of the notice, the complainant mentioned a sum of Rs.25,000/- and directed the accused to repay the same within 15 days. But the complainant has not at all explained as to why he has mentioned a sum of Rs.25,000/- in the demand notice, when at the first instance, the complainant has demanded only a 6 AIR 2003 SC 4689 -9- CRL.A No. 1097 of 2011 sum of Rs.20,000/- and the cheque amount is also same. Therefore, the learned JMFC held that more amount cannot be claimed by showing it separately. When such being the case, the requirement as contemplated under the notice under Section 138(b) of N.I.Act is not fulfilled. The learned counsel argued that though the complainant has stated that he has corrected the sum mentioned in the notice as Rs.20,000/- instead of Rs.25,000/-, but he has not put his initials to it in the second notice/Ex.P5. Therefore, the learned counsel argued that the finding given by the learned JMFC is in accordance with records produced before the Court and also as per the provision of Section 138 of N.I.Act. In support of his arguments, he has relied on decision of the Hon'ble Supreme Court in the case of K.R.Indira Vs. Dr. G.Adinarayana7 which is the judgment relied on by the learned JMFC and the learned counsel also relied on the judgment of Andhra Pradesh High Court in the case of TCI Finance Ltd., Vs. State of A.P. and Anr.8 wherein the
7. AIR 2003 SC 4689
8. 2004(1) ALD Cri. 979
- 10 -
CRL.A No. 1097 of 2011Andhra Pradesh High Court has held that the notice was not issued for the amount covered under the cheque, therefore, it falls short of the fulfilment of requirements under Section 138 of the Act. With these main arguments, the learned counsel prayed to dismiss the appeal.
10. After considering the rival contentions of the parties, the point that arise for consideration of this Court is:
Whether the judgment of acquittal passed by the learned JMFC is perverse, illegal and needs interference by this Court?
11. In order to appreciate the rival contention, it is necessary to refer to the provisions of Section 138 of N.I.Act which reads as under:
138. Dishonour of cheque for insufficiency, etc., of funds in the account. --
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of
- 11 -
CRL.A No. 1097 of 2011the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to
- 12 -CRL.A No. 1097 of 2011
the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
12. Therefore, on perusing the above section, it is evident that the complaint filed under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I. Act must contain the ingredients stated in the section and there should be legally enforceable debt or liability. On perusing sub clause (b) of Section 138 of N.I.Act, it shows that the payee or the holder in due course of the cheque, as the case may be, has to make a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of the information from the bank about dishonour of cheque. Sub- Clause(c) states that if the payment is not made within 15 days after receipt of the notice, then the offence is committed.
- 13 -
CRL.A No. 1097 of 2011
13. The offence though commences on dishonour of the cheque, becomes complete only upon the failure on the part of the drawer of the cheque to pay the amount covered under the cheque within 15 days from the date of receipt of notice for the demand of said amount. Therefore, issuance of notice as required under sub-clause (b) of proviso to Section 138 of the Act is a mandatory one and not a mere formality. Sub-clause (b) of the proviso to Section 138 of the Act only requires notice to be given in writing by the payee to the drawer in which there should be a demand made by the payee. This clause does not prescribe any form or format for such notice. In the absence thereof what has been contemplated by this clause is the communication in writing by the payee to the drawer asking the drawer to pay the amount involved in the cheque which is dishonoured. Only because there is a variation in the number of the cheque mentioned in the notice and in the body of the complaint, the cheque that was filed into Court cannot be held to be of no consequence when in the notice of demand, the amount covered by the dishonoured cheque was correctly mentioned and where the complainant's notice contained the necessary
- 14 -
CRL.A No. 1097 of 2011and material particulars regarding the bank's name and the amount of the cheque that is sufficient information in case the accused if at all wanted to comply with the same. What needs to be mentioned in such a notice cannot be viewed in a hypertechnical manner. The purpose of giving the notice is to bring it to the notice of the drawer of the cheque that the cheque issued has been dishonoured and to put him on guard with regard to making of payment covered by that cheque. If there is only one incidence of issuing a cheque between the parties, then, the mere fact that cheque number is not mentioned would not be fatal. Notice cannot be construed in a narrow technical way without examining the substance in the notice. The legislative intent of a notice in a proceeding under Section 138 of the N.I. Act is, to notify the drawer of the cheque as to the demand found therein; and that he should meet the demand within the stipulated time, and if not, the prosecution will be initiated.
14. To appreciate as to whether the notice is valid and legal, it is useful to refer to the contents of the complaint filed before the Trial Court. In the written
- 15 -
CRL.A No. 1097 of 2011complaint, the complainant has stated that the accused borrowed a loan of Rs.20,000/- and for repayment of the same, issued cheque and the said cheque came to be dishonoured with an endorsement 'insufficient funds', hence, the complainant issued a notice and the same was served on the accused through RPAD and through certificate of posting also. The accused also sent reply to the statutory notice. No where in the complaint he has stated that the accused has to repay a sum of Rs.25,000/-. The complainant in his examination-in-chief affidavit has reiterated the averment made in his written complaint.
15. I have perused the legal notice produced at Ex.P3. In the second paragraph of the notice, the complainant has stated that the accused for his domestic purpose borrowed a sum of Rs.20,000/- as a loan and agreed to repay the said amount within one month. But accused failed to pay the said amount within stipulated time. But the accused has issued a cheque bearing No.618152 dated 08.11.2004 for a sum of Rs.20,000/-. When it was presented for encashment, the same came to be
- 16 -
CRL.A No. 1097 of 2011dishonoured stating that there is insufficient fund in the drawer's account. In the third paragraph of the notice, it is stated that the accused should repay a sum of Rs.25,000/- within 15 days of receipt of notice and take back the cheque with due receipt, otherwise, suitable action will be taken in accordance with law. Ex.P4 is the postal acknowledgment, Ex.P5 is the another notice sent to accused through the certificate of posting. However, Ex.P5 also reiterates the contents of Ex.P3, but in paragraph No.3 of Ex.P5, the amount Rs.25,000/- is corrected as Rs.20,000/-. Ex.P6 is the reply notice given by accused wherein the accused admitted issuance of cheque bearing No.618152 as security till return of the loan borrowed from the complainant. But the accused states that he has borrowed a sum of Rs.5,000/- only and he has repaid a substantial amount, only a sum of Rs.300/- is due as balance amount. The accused has further stated that he is ready to pay the balance of Rs.300/- and requested the complainant to return the cheque.
16. Once the parties have understood that the notice has been given only with regard to the cheque amount which
- 17 -
CRL.A No. 1097 of 2011is due and what is demanded, if conveyed through issuance of notice, any such discrepancy even if mentioned inadvertently in the notice, will not invalidate such notice of demand. When the parties have understood the account number, cheque number and the amount, the other typographical errors, if any occurred while issuing the notice, will not make such notice bad in law.
17. The learned JMFC on perusing Ex.P3 has misdirected himself and thought that though the cheque/ Ex.P1 issued was for Rs.20,000/-, the complainant made demand for Rs.25,000/-. But the complainant in his examination-in-chief affidavit and legal notice has clearly stated that the accused is due to pay a sum of Rs.20,000/- only as per Ex.P1/Cheque.
18. Learned counsel for the respondent/accused drawn attention of this Court to the portion of the cross- examination of complainant/PW.1 wherein, in the cross- examination, the complainant was asked as to why in third paragraph of Ex.P5 Rs.25,000/- is mentioned, though earlier it is mentioned as Rs.20,000/-. The complainant has replied
- 18 -
CRL.A No. 1097 of 2011that, may be cheque amount is Rs.20,000/-, but Rs.25,000/- includes other expenses of Rs.5,000/-. But he has stated that no where in the complaint, he has mentioned Rs.25,000/-. Therefore, that does not mean that the demand was for Rs.25,000/-. On the other hand, the accused in his cross-examination admitted the issuance of cheque and his signature on Ex.P1/Cheque. Therefore, what was demanded in the notice is only a sum of Rs.20,000/- and not Rs.25,000/-.
19. Learned counsel for the respondent contends that the cheque number differ in the notice and affidavit evidence filed by the complainant. In the affidavit evidence filed by the complainant, the cheque number is mentioned as '18152' and in the notice it is mentioned as '618152'. It appears to be a typographical error or it may be not noticed or either corrected while filing evidence affidavit, but it does not throw away entire case of the complainant. It is not disputed that the cheque produced by complainant was marked as Ex.P1. It bears cheque No.618152, which is dishonoured for insufficient fund in the account. Complaint is
- 19 -
CRL.A No. 1097 of 2011filed on that bank endorsement only. The accused very well knew that it is the said cheque on which notice was issued and in the notice the cheque number is clearly mentioned as '618152'. Therefore, the decisions of Hon'ble Supreme Court and Andhra Pradesh High Court relied by the learned counsel for the respondent has no application to the facts of this case and is of no use to the respondent/accused.
20. It is the settled principles of law that while appreciating the evidence, the evidence will have to be read as a whole, one cannot pick up any stray sentence, word, or typographical error here and there which is not noticed and corrected and argue that it is an admission. To call it as an admission, it must be clear, unambiguous, unequivocal and certain, then only that sentence or word or figure can be called as an admission. Before the right of the party can be taken to be defeated, on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity. The party can show that what is stated as an admission is not an admission, in fact, he can give
- 20 -
CRL.A No. 1097 of 2011explanation to show that it is typographical error which is bonafide one. In view of the above, if the entire evidence, the complaint, reply to the statutory notice and the evidence of accused are considered, then it is evident that what is demanded by statutory notice is only Rs.20,000/- due under the said cheque.
21. The object of issuance of notice is discussed by the Hon'ble Supreme Court in the case of Central Bank of India and Another9 and at paragraph Nos.6, 7 and 8, it is held as under:
6. Section 138 of the Act, inter alia, provides that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account, such person shall be deemed to have committed an offence under the above section. According to the proviso to the said section unless the three clauses mentioned therein
9. AIR 1999 SC 3607
- 21 -CRL.A No. 1097 of 2011
are fulfilled the provisions of the section shall not apply. In these appeals we are concerned with clause (b) which is quoted below:
"138. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and"
7. Though no form of notice is prescribed in the above clause (b) the requirement is that notice shall be given in writing within fifteen days of receipt of information from the bank regarding return of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque has to be made.
8. The object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect an honest drawer. Service of notice of demand in clause (b) of the proviso to Section 138 is a condition precedent for filing a complaint under Section 138 of the Act. In the present appeals there is no dispute that notices were in writing and these were sent within fifteen days of receipt of information by the appellant Bank
- 22 -
CRL.A No. 1097 of 2011regarding return of cheques as unpaid. Therefore, the only question to be examined is whether in the notice there was a demand for payment.
22. Further Hon'ble Supreme Court in the case of Suman Sethi Vs. Ajay K Churiwal10 at paragraph Nos. 8 and 9 held as under:
8. It is well-settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e. cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement.
Where in addition to the "said amount" there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break-up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad.
10 AIR 2000 SC 828
- 23 -
CRL.A No. 1097 of 2011
9. This Court had occasion to deal with Section 138 of the Act in Central Bank of India v. M/s. Saxons Farms [(1999) 8 JT SC 58 : (1999 AIR SCW 3621 :
AIR 1999 SC 3607 : 1999 Cri LJ 4571) and held that the object of the notice is to give chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest etc. is also made drawer will be absolved from his liability under/S.138 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before the complaint is filed."
23. Learned Magistrate has not understood properly the principles stated in the case of K.R.Indira11 referred supra and wrongly held that the demand notice was not in compliance with the Section 138(b) of N.I. Act. The Hon'ble Supreme Court in the case of Central Bank of India12 referred supra has held that the object of notice is to give a chance to the drawer of the cheque to rectify his omission.
The demand in the notice has to be read as a whole.
11. AIR 2003 SC 4689
12. AIR 1999 SC 3607
- 24 -
CRL.A No. 1097 of 2011Drawing any such conclusion contrary to the facts and evidence on record is erroneous. It is not the defence of the accused that Ex.P1 is not the cheque issued by him.
24. This Court being a First Appellate Court while considering the appeal against the acquittal, will not interfere unless the judgment of acquittal of Trial Court is perverse, illegal and not based on settled principles regarding appreciation of evidence. The Hon'ble Supreme Court in the case of Chandrappa and Ors. Vs. State of Karnataka (2007) 4 SCC 415 has laid down the general principles regarding powers of Appellate Court while dealing with an appeal against the judgment of acquittal and at paragraph No.42 it is held as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition
- 25 -CRL.A No. 1097 of 2011
on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
- 26 -
CRL.A No. 1097 of 2011
25. Keeping in mind the power of Appellate Court as stated in the Chandrappa's case supra and in view of the discussion made above, it is evident that the impugned judgment of acquittal by the Trial Court is illegal, perverse and has resulted in miscarriage of justice. Hence, the said judgment of acquittal needs interference by this Court.
26. The learned JMFC has not at all gone into the merits of the case and not appreciated the evidence lead by the complainant and the defence of the accused. The learned JMFC has not discussed anything about raising presumption and rebuttal of that presumption arising under Sections 118 and 139 N.I Act. The learned JMFC has passed the judgment of acquittal only on technical ground, not on merits, stating that the notice is invalid. He has not gone into the question of the proof regarding legally enforceable debt or liability and other contentions urged by both the parties. Therefore, the matter requires to be remanded back to the Trial Court for hearing the arguments on merits in view of the evidence already on record.
- 27 -
CRL.A No. 1097 of 2011
27. The case before the Trial Court is of the year 2004 and the cheque amount is Rs.20,000/-. Therefore, in my considered view, the Trial Court be directed to hear the final arguments and to dispose of the matter on merits in a time bound manner i.e., within a period of two months from the date of receipt of records. In the meanwhile, the parties may amicably resolve the dispute before the Trial Court, if they wish as submitted.
28. Accordingly I pass the following ORDER
(i) The appeal is allowed.
(ii) The judgment of acquittal passed in C.C.No.124/2010 dated 26.08.2011 by the Senior Civil Judge and JMFC, Sagar is hereby set aside and the matter is remanded back to the Trial Court.
(iii) Both the appellant and respondent shall appear before Trial Court on 27.02.2023 without waiting for any notice from the Trial Court.
- 28 -
CRL.A No. 1097 of 2011
(iv) Learned counsel for the parties appearing before this Court are also directed to instruct their counterpart at Trial Court and the parties to be present before the Trial Court on 27.2.2023.
(v) As both sides have already lead evidence, the Trial Court shall hear the final arguments of both sides and shall dispose of the matter on merits and in accordance with law, within an outer limit of two months from the date of receipt of records.
(vi) Registry to send back the Trial Court records forthwith.
(vii) No order as to costs.
Sd/-
JUDGE HJ List No.: 1 Sl No.: 29