IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.239/2017 BETWEEN:
Smt. R. Mahalakshmi, Aged about 55 years, D/o Late M. Raju, Sr. Clerk, Department of Mathematics, Indian Institute of Science, Bengaluru – 560 012.
(By Sri. A. John Bosco, Advocate) AND:
Sri. Muniswamy, S/o. Gopal Swamy, Major, R/at Ummathuru Village, Santhmaranahalli Hobli, Chamrajnagar Taluk.
... Petitioner ... Respondent (By Sri. J.T. Gireesha, Advocate) This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Cr.P.C., praying to set aside the judgment and conviction and fine amount of Rs.7,60,000/- passed by the C.J. (Jr.Dn.) and J.M.F.C., Yelandur in C.C. No.62/2012 dated 02.01.2016 by convicting the petitioner/accused and to allow the revision petition and acquit the petitioner and also set aside the order and judgment and conviction dated 30.01.2017 passed by the Principal District and Sessions Judge at Chamarajanagar in Crl.A. No.1/2016 and to acquit the petitioner.
This Criminal Revision Petition coming on for Hearing, this day, the Court made the following:
O R D E R The present revision petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by the Court of the Principal District and Sessions Judge, Chamarajanagar in Crl. A. No.1/2016 dated 30.01.2017.
2. I have heard the learned counsel for the petitioner/accused and the learned counsel for the respondent.
3. The facts in nutshell as per the complainant are that the complainant and the appellant/accused were known to each other and they are also relatives.
Accused for her necessities, borrowed a hand loan of Rs.5,00,000/- from the complainant on 20.11.2010 at Ummathuru Village, agreeing to repay the same to the complainant within two months. The complainant had demanded the said amount of Rs.5,00,000/- from the accused. At that time, accused issued two post dated cheques for a sum of Rs.2,50,000/- each to discharge the said liability. The complainant presented the said cheques through his banker on 04.06.2011 and the same has been returned with the shara “account closed” with an endorsement dated 12.07.2011. Thereafter, the complainant got issued a legal notice dated 20.08.2011 and the same was served to the petitioner/accused. She gave an untenable reply and within 15 days, the accused did not pay the amount and as such, the complaint was filed on 07.10.2011. Thereafter, the trial Court took cognizance and secured the presence of the accused. Accused appeared and his plea was recorded. Accused pleaded not guilty and she claimed to be tried. As such, the complainant got examined himself as PW.1 and got marked 22 documents. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. Accused got examined herself as DW.1 and got marked 6 documents.
4. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as ‘the Act’) and the accused is directed to undergo simple imprisonment for three months and to pay a fine of Rs.7,60,000/- and in default to undergo simple imprisonment for one year. Out of the fine amount, Rs.10,000/- shall go to the State for the expenses of prosecution and remaining Rs.7,50,000/- is ordered to be paid to the complainant towards compensation. Challenging the same, the appellant/accused preferred the appeal before the Court of the Principal District and Sessions Judge. Learned Principal District and Sessions Judge by order dated 30.01.2017, dismissed the appeal by confirming the order of the trial Court. Challenging the same, the appellant is before this Court.
5. The main grounds urged by the learned counsel for the appellant are that as per Ex.D3, the petitioner/accused has been advised rest from 20.11.2010 and she got admitted in Dr. Solankey eye hospital on 27.11.2010 and on the same day, a surgery was conducted. Under such circumstance, she traveling 200 km’s to Ummathuru Village is not possible. It is his further submission that the respondent/complainant was not having any capacity to lend the loan of Rs.5,00,000/-. It is his further submission that as per the reply given at Ex.P9, she has taken up a specific defense that she has not borrowed any hand loan of Rs.5,00,000/- and respondent’s sister – R. Komathy requested her to borrow a hand loan, she wanted to borrow a hand loan for security and she required four cheques. A cheque bearing No.244117 for a sum of Rs.2,50,000/- another cheque bearing No.244118 for Rs.2,50,000/-, another cheque bearing No.244119 for a sum of Rs.4,00,000/- and cheque bearing No.244123 for a sum of Rs.4,00,000/- have been issued as security in favour of the complainant. In that light, the said cheques have been mis-used. He further submitted that the accused issued a notice dated 27.12.2010 at Ex.D1 therein, she has specifically contended in paragraph No.2 that she demanded to return the said cheques but the same has been postponed on one pretext, in spite of that or the other and demanded to pay a sum of Rs.3,00,000/- to solve chit member problem and as the accused was unable to arrange for which the complainant got annoyed and intended to put the accused in problem. As she has closed the account of the bank, she requested to return the said cheques. It is his further submission that in view of the issuance of Ex.D1, when the complainant had been informed not to present the cheque, it was presented, under such circumstance, it will not attract the provisions of Section 138 of the Negotiable Instruments Act, 1881. In order to substantiate the said contention, he relied upon the decision of Hon’ble Apex Court in the case of K.K. Sidharthan Vs. T.P. Praveena Chandran and Another reported in (1996) 6 SCC 369. It is his further submission that the cheque issued is dated 07.02.2011 and the same was presented through the banker and it was returned with an endorsement that account closed/no such account on 12.07.2011 and legal notice was came to be issued on 20.08.2011. But the said notice has not been issued within a period of one month from the return of the cheque as contemplated under Section 138 of the Act.
6. In that light, there is a delay in filing the complaint on that ground also the complaint is not maintainable. He further submitted that the Court below as well as the First Appellate Court ignoring the said facts have come to a wrong conclusion and have wrongly convicted the accused. On these grounds, he prayed to allow the petition and to set aside the impugned order and acquit the accused.
7. Per contra, learned counsel for the respondent vehemently argued and submitted that the accused has borrowed Rs.5,00,000/- and he has issued two cheques drawn on State Bank of Mysore branch. When the said cheques have been presented, the said cheques have been dishonored. Thereafter, the legal notice was got issued. Accused has taken the defense that she has not visited the house of the complainant but the said cheques have been taken as a security, then under such circumstance, a presumption has to be drawn that the trial Court and the First Appellate Court by drawing a presumption have rightly convicted the accused. When the accused has taken the contention that the cheques have been issued in good faith, it is going to be returned after three months. No explanation has been given after service of the notice. The another defense of the accused is that she got admitted in the hospital and has undergone eye operation and availed a loan of Rs.5,00,000/-. The accused has failed to establish the doctrine of plea of alibi. Taking into consideration of the above said facts and circumstance, the trial Court as well as the First Appellate Court have rightly convicted the accused. The petitioner/accused has not made out any good ground to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions of the learned counsel for the petitioner/accused and perused the records.
9. The first and foremost contention taken up by the petitioner/accused is that there is a delay of 8 days in issuance of notice as such, the provisions of Section 138 of the Act are not attracted. For the purpose of brevity, I quote Section 138 of the 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 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 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 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.”
10. On close reading of the said Section, it mandates that the cheques have to be presented to the bank within three months from the date on which it is drawn or within a period of its validity, whichever is earlier. Thereafter, the complainant has to make a demand for the payment of the said money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information from the bank, regarding return of the cheque as unpaid. Thirdly, the drawer of the cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Under such circumstances, the cause of action arises to file a complaint within 15 days from the date of the non-payment of the said amount.
11. On going through the said Section, it mandates that after the said cheques have been returned ‘unpaid’ and within 30 days of the receipt of the information, the notice has to be issued. Admittedly, the said cheques have been returned with an endorsement on 12.07.2011 as per Exs.P3 and P4 and also Ex.P5. Admittedly, the legal notice was came to be issued as per Ex.P6 as on 20.08.2011. The said notice ought to have been got issued on or before 12.08.2011. In this regard, there is a delay of 8 days in issuing the notice for demand of the said amount due under the said cheques.
12. On close reading of Section 138 of the Act, the word used is “shall”, only when the terms and conditions which have been enumerated therein are complied, then the complaint can be entertained. If any lacuna or any of the ingredients as contemplated under Section 138 of the Act have not been followed, the complaint is not sustainable in law. Be that as it may.
13. It is the specific contention of the learned counsel for the petitioner/accused that the petitioner/accused had informed the complainant not to present the cheque and if before it was presented, if the same thing has informed then under such circumstance, the provisions of Section 138 of the Act cannot be made applicable and no case can be registered.
14. As could be seen from Ex.D1, the said notice has been issued on 27.12.2010 and at paragraph No.2, it has been specifically mentioned that the petitioner/accused has closed the account of State Bank of Mysore, Cunningham Branch, Bengaluru. Saving Bank account due to her personal problem. A request has also been made to return the cheque given. When a demand has been made to return the said cheques which he has taken from her account as stated in paragraph No.1 and in paragraph No.1, the cheque No.244117 for a sum of Rs.2,50,000/- and cheuqe No.244118 for Rs.2,50,000/- have been mentioned.
When the said demand has been made prior to the presentation of the cheques, then under such circumstance, the provisions of Section 138 of the Act are not attracted. This proposition of law has been laid down by the Hon’ble Apex Court in the case of K.K. Sidharthan quoted supra at paragraph No.3, which has been observed as under:
“3. The case of the appellant is that the cheques were returned, not because of insufficient funds, but because he had issued stop memo to the bank for reasons detailed in the letter of appellant’s Advocate dated 4.10.1994 addressed to the respondent. This letter was replied by the respondent on 12.10.1994 stating inter alia, that the allegations made in the letter of 4.10.1994 were not true; and date and place may be fixed for perusal of the accounts and connected records. The appellant has produced a communication of the Indian Overseas Bank, Thrissur, Branch, which is at page 64 of the Paper Book, showing that when he cheques in question were presented there was sufficient balance in the account of the appellant. This communication bears the numbers of two cheques which tally with those mentioned in the compliant. We are, therefore, satisfied that the cheques were not returned because of insufficient funds as is the allegation in the complaint.”
15. On going through the said paragraph, it indicates that the said notice comes within the purview of this ratio laid down in the above decision and the said cheques were also returned unpaid as ‘account closed’ when the notice dated 27.12.2010 itself she has specifically contended that the account has been closed. Thereafter, the complainant has presented the said cheques through his banker on 04.06.2011, and the same has been returned on 12.07.2011. In that light also, the contention taken up by the learned counsel for the appellant is having a force and the same is liable to be accepted.
16. As could be seen from the records, it is the specific contention of the accused that the complainant had no lending capacity and the said cheques have been issued by her to her younger sister who is wife of the complainant. For the purpose of obtaining loan from the third party, four cheques have been issued in blank without mentioning the date and the complainant and his wife promised the accused that they will return the said cheques after selling their house and discharging their loans. Even the said defense which has been taken up by the accused has been rebutted on preponderance of probabilities. The Court below as well as the First Appellate Court without looking into the said facts and circumstances has erroneously come to a wrong conclusion and have wrongly convicted the accused.
17. Taking into consideration of the above said facts and circumstances of the case, the criminal revision petition is allowed and the judgment passed by the Court of the Principal District and Sessions Judge, Chamarajanagar in Crl.A. No.1/2016 dated 30.01.2017 is set aside consequently, the judgment of the trial Court is also set aside and accused is acquitted of the charges leveled against her under Section 138 of the Act.
If any amount is deposited by the accused, the same may be refunded to the appellant/accused on proper identification and acknowledgment.
Registry is directed to send back the LCR forthwith.
Sd/- JUDGE VBS