Karnataka High Court
M/S United Distributors vs Smt Geetha K Rai on 20 October, 2010
Equivalent citations: 2012 ACD 474 (KAR), 2012 (2) AIR KAR R 280, (2011) 3 KCCR 1825, (2012) 3 ALLCRILR 793, (2012) 3 ICC 712
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
INTHEEHGH(XNHWFOFKARNAEMQXATBANGALORE DATED THIS THE 20"' DAY OF OCTOBER, 201_0___ BEFORE THE HONBLE MRS.JUS'I'ICE E.v.NAGAR.A'f'H'1§A----- A. CRIMINAL APPEAL N931 136/2ij<}<.1§:j » ' BETWEEN: V A 1' h 4 M/S. UNITED DISTRIBUTORS-.___ APARTNERSI-IIP FIRM HAVINGETS OFi3'ICE.VA '1? NARMADA, FALNIR ROAD, ' ' MANGALORE. .. REPTD. THROUGH MRfH~1IM'MAPRA_V_RA1«.% s/0 KARIYAPPARAI AGED ABOUT 37 YEARS, " AUTH0R1sED PERs0NANI3; _ . V_ - SALES OF FALNIR " A --. - ...APPELLANT [BY SR: COUNSEL) ' SMT; . W./O E$1RAN,*4e5 YEARS 'PROP.BEST'ELECTRONICS ' ~KOHIN'O€_3R MADIKERE cQ_oRG_ DISTRICT. = " ...RESPONDENT
{BY SR1 SANDESH SHETIY. ADVOCATE) fw THIS CRIMINAL APPEAL IS FILED U/S.378(4} OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT ORDER OF ACQUITTAL DATED 3.6.2004 PASSED BY JMFC--III COURT, MANGALORE, D.K., IN C.C.NOi_89/02:.' _ THIS APPEAL COMING ON FQa...HsAR_1'N"c;" '* 1' COURT DELIVERED THE FOLLOVVIN_VG:--:-i.e A. f} ' J U D G _1_: A A This appeal is 'filed it iAt_'wc§n;p1ainant by chailenging order passed in C.C.N0.89 by the iearned JMFC (Sid it
2. 'A,_c0rdi11.g'°tO.-theuccmpiainant. it is a registered partiiership firindicarriring on the business of dealership »r:,Qnesumers.__ durables and home appliances etc., in of "Best Electronics", at Mangalore. The cdm;.)iainant~firm is a dealer in Videocon made it Wa'shing Machine and Refrigerator; that the accused is carrying on her business as proprietrix fl of "Best Electronics" at Madikeri, Coorg District and that she has been purchasing Refrigerat0rs..'V*a:n.d Washing Machines on credit basis by _ complainant and was maintaining...a_ run'ni'n'g:'_~acc0unt., "
relating to the transactions. the business, complainant «~ Machine and Refrigeratcrs [ during the period December tc' @1000. As far as the books of complainant, the accused' __etmvRs.2,58,763/~ in DeceInbe'r' meet the liability, the accused, had cheques drawn on Central Batik'ofIndia;'kodagarahalli Branch, Kodagu, '' the ccnipiainant as part payment of her cV1.i.tsttaif1'<:1ir1,§ _a_ifn0unt, the details of which are as fdii.cws_:.~ ~ -- L' Chegue No. Date Amount Rs.
002641 17-06-2000 T _ 002642 22-06-2000;' '_ " 3%3,.0'0_0---_Q'0h 002643 26-06-2000 ;t4;260é'0'0.0t' "
002644 29-06-20:fJ0' % A *3_0';e66t0-0:0 That the a¢¢:;é.ed the complainant -vf:'._1fm_'t0 of the said 112/ 12/2000, the but the same were h the bankers namely, Karnatakaxt'~Ba11k}!fiatrngfitinakatte Branch, Mangaiore, Wits" 'i5-.S1l€d stating that the cheques could i1.Qf1?jufed on account of "Insufficiency of Funds"
ar.'1d. "St0p '*1;-agfihent instruction issued to the bank on ht'~.., V.,13/12;'2O0{}, which was communicated to the 'L-e0r:r_1"p1«ainant on 20/12/2000. Subsequently, 21 ii» registered notice dated 31/ 12/2000 was got issued to the accused under Section 138 of the Negotiafole Instruments Act (hereinafter, referred to . requesting the accused to make pay.m_epnt it "
from the date of receipt of the said received by the accused reply was given by the accVu--sed:.--. "cheques issued by the accused and reply sent by the accuse,§;ji.g;:5:/ere eoniplainant filed the compla§int"S:u1id'e'r.__ Act r/W Section 200 of20'0Al/"Ti1ereafter, on 2/ 1/2002, sworn was recorded and Exs.C_._l to '¥"C..l1.VVwer-e 'marked. cognizance was taken ' 0' ''v.and.r..pro'e.essp. was issued for appearance of the accused .a'1"1_d' accused was present before the Court, released on bail on executing the bond surety. Subsequently, plea was recorded for the offences punishable under Section 138 of the Act and E /,;;w"
having recorded the said plea, of not guilty the accused claimed to be tried. Accordingly, the case for evidence. In support of their case, the _ examined P.W.l and got marked " it the accused examined himself as;"¥).W_'.i1'lVand Exs.D.l to D4. The staterziient ofdthe Section 313 of the "r.ecoi"d'ed-_ after hearing both sides, acquitted the accused for 'Section 138 of the Act. svaidnorder of acquittal. the coniplainiarit;p5:'efe1'red thiisvapfipeal.
3." .I_ have'hear--d:_4th'e"learned counsel appearing for theégconiplainantf appellant and the learned counsel V the accused / respondent.
it isesubmitted on behalf of the appellant that thelltrial; Court was not right in acquitting the accused. A instant case, it was not in dispute that there was business transaction between the parties; that a l current account was maintained in respect of the purchase made by the accused from the con1p1_aina._nt._:
that there was outstanding dues of Rs.2,58,7_63W/§4' . relevant point of time. in respect _o»fw_hich,h it"
had issued four post dated cheques of the accused for postponiiig the of * it cheques, they were not and... on 13/ 12 / 2000 it was but the same were loaf there being insufficiency 'as p.(i}F111€1'1t instructions were is'sue'd «o'r1""4§/9/ 2000. Hence, the accused'-. Jofhfence punishable under Section 138» gr the AAAct;°:but the trial Court failed to V' appreciate this aspectlof the matter and has erroneously "_'_.He has also submitted that as on the data' of ~ pit--esentation of the cheques. there was ll""'--__V"outstanding amount due from the accused and though theperiod between the handing over of the four cheques /'°, .r in question and the date of presentation, there were five cheques issued and some cash payment made V=.a1'1d which cheques have been encashed, the _ absolve the accused from making.,Vpaymen't" if cheques in question and therefore. trial Court has to be reVersed=...andAaccusedh_as._to3 be convicted for an offence punishable-._.unde'r--Section 138 of the Act.
5. Per 'coun-sehitappearing for the respondent = vlialthough four post--dated pthhefffffaccused. at the first instance,..V_the respect of the said cheques waps;'Rs,88,u()3Q'/91 thateven before the said cheques could. presentedwfor encashment, five other cheques for the very sum of 'Rs.88,O8O/W were given 'the accused and the said five cheques were 'eticashed in the month of August 2000. Subsequently, 9 / 2000, stop payment instructions were given and 3;» r therefore, there was no necessity for the complainant to have presented the four cheques in question; thatV.there has been no dishonor of the said cheques 'A . law and hence, the trial Court was_3'us_tified"in" " "
the accused, which order does, interference in this appegflg-..V..V_ In" his submission, he has relied onV,ithe"yde'ci.sions, which shall be adverted to subsequently. 0'
6. appearing on both sides ltlefelllrijiaterial on record, the only niylllvlconsideration is as to whetherflthe trial Court calls for any interference in'-this' 0 appeal. ' " .. acareful scrutiny of the material on record, it".i.s'*not Elispute that in the first instance, four ',_post.udate¢d cheques, details of which are referred to A for a sum of Rs.88,030/«~ were issued in the rrionth of June 2000 by the accused in favour of the %,x ,» 10 complainant. It is also not in dispute that subsequently. following cheques were issued accused in favour of the complainant, . are as L1I1d€l'2- Rs.16.500/--
b) Cheq ue ,.No.5.6'4'~8.6_"6 " 'git. 14A'/8';A'.2O(E9O for Rs.I6,500/- % {These two in place of "<21 Cheque No.56486;5 >"d_t:10/'8{.2OG'O" fa 4 VA ¢ 'luna¢r_c..R.:::;Io.7385 cit.22/ 6/2000 cheleq:;;;%1' No. (902462 qfréls. .3;3;ooo/-1 Rs. 1 5,3 70/ --
d} Cheque No.R5.6;4868-- 8.x/'l'2:';(':):'L30.;"or Rs.15,000/- - "
{Thee two»c;heq.aes.Vwefé'iesa'ed. in place of Cheque l\To__;OQ246_.1 ofRs;3-Q;370/--)
e) V'Chefq'ueeNoV,554869 dt.24 /8/2000 for Rs._.l4,280/A ' cheqae lseued in place of Cheque N0.002463 QfRS. 4',._28VO/--) of O,380/- was paid in cash 2 .w""7 N§;5'64:8e7'd;. 18 / 8/ 2000 for 11 (This amount was paid in place of cheque No.0O2644 cfRs.10,380/~)" '
8. The four cheques in question were drawn K Central Bank of India, Kodagarahalli Dist, while the aforesaid }§ive:.._'cjheques--._ subsequently, were drawr1V.e'o.n Vijaya Ban'}§...'e.MadikAe1'i.'V' Branch. It is also not in thatVihe"'a:foresaid five cheques were encashedfby a sum of Rs. 10,380/~ was received prior to the 'V by the accused td Ceiiit;ija1.fEndia'.§oii 4/ 9/2000. It is subset;uent1y,0:VofiV-~ that the four cheques in questionddhwiere vi)r_esent:_e.d before the bank and which di_:shonou1'*ed._. ____ 0111 the face of the aforesaid admitted and facts, the question that arises is as to .in*h'ethei*.'the.:'c1aim made by the complainant in respect of t1in.e'«;_dishonor of the four cheques amounting to 035230.030/-- was intact, satisfied by the respondent- 12
accused and therefore. there was no cause of action which arose for the complainant or in other words V. the direction for stop payment issued by the _ the bank was not in violation of Section it On a comparison, of the amounts due"on._ch.e"que§;=.__in:;_* question and the amount V cheques issued by the well as cash of Rs.10,380x/¥:"__paidv to the complainant be inferred that the of the said four cheques dddd by virtue of the encashrnent oi five cheques and receipt of cash of However, it is the contention of .0 V'"v.,th§:r._iea1'nedA.coudnsetfor the appellant that since there _wa_sV a runni'11g"account maintained between the parties, the-.r_e w.as.iii:iany case outstanding dues of over Rs. Two lakhsz the accused; that despite the encashment of ,,,fhe_'..'iaforesaid five cheques in August 2000 and cash 13 payment made, the amount still due under the cheques in question was a legal liability which the accused to satisfy and hence, under those circumstari:ces...'_'vt.he:..__'*_ presentment of cheques was only .in_ accord"af1_ce"'wwith it the outstanding legal liability of the the trial Court was not justi-.figed in the accused.
9. At the outse:t:,_V'~it note that though there" maintained between was due to the complainanltl " iii}; of various electrical appliances,4'what._ha.s--»to"-be'«considered for the purpose of deter;irti'iningatl*ieV'o'fi"ence under Section 138 of the Act in yti'ie_yli11st-aiztlcase is as to whether the claim made under question had been satisfied by the accuseci: so as to absolve her of any legal liability arising said four cheques in question. As already lstateld, it is not in dispute that the five cheques issued *2/.' 14 in the month of August 2000 and cash payment of R.10.380/- made by the accused totally amou.nts:_"to Rs.88,030/- which was the amount due _ cheques in questions. Though the yaccu-sedu "
been liable to the complainant in :'res;§ect of .ti1e"c-.1I'rou'nt1.t_' over and above what is due"'r.unde'r Vicur0'0._che'qu€:s--~i in -. ' question, the scope they.--..c:omp}ainan't--bhasii to be restricted only to whatiiéist which are dishonoured: iiability. Infact, the debt or' Section 138 of the in"the'jcontext of the amount that ari'ses.',0r irrrespect of the four cheques initially issued by'v-the_0'accused and which were returned a_ban.1; dishonoured, either due to insufficiency of rxfurids "to stop payment instructions in which case, th..e'oi:tence could be said to have been committed. Therefore, the contention of the counsel for the 0.0'?-.yapp:e'11ant that despite the payment of Rs.88,030/- by §/ 15 the accused in the month of August 2000 through cheque and by cash, there was still outstanding uliuabidiity on account of the business transactions which. the dishonor of the four cheques in W to be considered cannot be accep"L.ed.;'_"r A. it'
10. Further Section 'ivt.':i9i,of t1'ie.VActg {mth " V presumption in favoiifgf 'ijiowever, the said presurnption and contrary the accused in order to the "complainant. In the instant ééttternent itself the accused
- has stated five cheques were issued and; cash p.ay1ne'1it of 10.380/- was made which was aiso acigtvtovqledgedddddand that these five cheques drawn were duly honoured and which ani*oui.1ted':"'to Rs.80,030/- which figure tallies with the 'axnount mentioned in the four cheques in question and under these circumstances that stop payment 9 »/T"
16
instructions were issued on 4 / 9 / 2000 to Central Bank of India. Subsequently, in December 2000, were presented just prior to their expiry . intention to receive the double payment. _"Fhe"ey§d'en'ce let in by the accused in supportl'-of said' clearly rebuts the case of circumstances, the initially th-e--llp'res'urI1ptionraised in favour of the complainant l4v"l.:l.Oflg€F survive.
Accordingly, for the appellant that of accused were over and of the amount mentioned "was in question and therefore, disho--nor_uof":the said four cheques would to an offen(:e"'punishable under Section 138 of '~:i:;e figs ~£'c...:b'¢_. rejected. In this context, the decision of the Delhi High reported in case of M/s.Nijier Agra Foods and Others -«vs» Nasib Chanel and anogher, ta 17 (2004 Crl.L.J. 529) has been relied upon by the learned counsel for the respondent which is applicable to the facts of the present case. In the said post-dated cheques were given in guarantee, subsequently, the vverse substituted by way of de1na.nd___draftsas it and under the said circumsta§ncles,_sit the liability of the said 'once the payment against those" by way of demand not entitled to present amount or some the accused. in the said decision, it"'iss'st.ated7that:Section 138 of the Act pertains 'lid-.tpo cheques '''' which are issued towards a legal the said liability stands discharged the oi;f-ence,~U.rid,er Section 138 of the Negotiable Instruments Act cannot be converted into civil suit for recovery. _ ' These are specific proceedings and confine only to Z , 18 cheque drawn by a person on an account maintained by him with a banker for payment of any amount of to another person from out of that _ discharge, in whole or in part or otheyrpliabiiity; --0: y '
12. In the instant case, Rs.88,030/~ arising from thetfodur cheq--u_es. had been paid by way on another Bank, which ,".'1,j?_"'»0__'.*.7'\ugust 2000 and by further /-- there was no other the four cheques in questionttdpv Court was right in acquittingthe offence punishable under Sectiori 1380' Act."
In the case of M/s.Kumar Exports ..;~.s;~.~r Carpets reported in (AIR 2009 so 0015108) "the context of presumption raised under A 5I"Siection 139 of the Act and its rebuttal, it is stated by 0 the Apex Court to rebut a statutory presumption, an E ;2 19 accused is not expected to prove his defence beyond reasonable doubt as is expected by the comp1aina.nt~.._:i11_ criminai trial. However. in the instant presumption has been effectiVe_]_y... ._rebu.ttéd* the accused and therefore, the offence;''11,1r§d_Ae1''iVSection: 35.:
the Act is not made out.
14. According1y.':'t.1;1e fpoint:/fort'-._consideration is answered against the of the respondent.
157" accordingly, dismissed.
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