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2010 DIGILAW 473 (KAR)

Amzad Pasha v. H. N. Lakshmana

2010-04-05

K.N.KESHAVANARAYANA

body2010
JUDGMENT :- K.N.Keshavanarayana, J: This appeal by the complainant in C.C. No. 454 of 2004 on the file of the Judicial Magistrate First Class, Malavalli, is directed against the judgment and order dated 28-5-2009 acquitting the respondent-accused of the charge levelled against him for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’). 2. The appellant filed private complaint under Section 200 of the Criminal Procedure Code, 1973 against the respondent-accused alleging offence punishable under Section 138 of the Act inter alia contending that the respondent-accused as Proprietor of Lakshmi Narasimhaswamy Finance Corporation, Halagur, approached the complainant for 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 loan the accused issued post-dated cheque dated 30-6-2004 for Rs. 4,50,000/- drawn on Mandya District Co-operative Central Bank Limited, Halagur Branch and when the said cheque was presented for encashment, the same was returned unpaid with Banker’s endorsement “funds insufficient” and inspite of service of notice, the respondent-accused failed to pay the amount covered under the cheque as such he has committed offence punishable under Section 138 of the Act. 3. Upon service of summons, the accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against him and claimed to be tried. During the trial, the complainant examined himself as P.W. 1 and got marked Exs.P.1 to P. 17. 4. During his examination under Section 313 of the Cr. P.C., the accused denied all the incriminating circumstances appearing against him in the evidence of the complainant. In defence, the accused examined himself as D.W. 1 and produced Exs.D.1 to D. 7. 5. The learned Magistrate, on appreciation of the oral and documentary evidence, by the judgment under appeal, acquitted the accused on the ground that the complainant has failed to prove the existence of debt and that the notice issued under Section 138 of the Act is not properly addressed to the respondent as such there was no service of notice on the respondent and therefore, the offence under Section 138 of the Act is not made out. 6. Being aggrieved by the said judgment of acquittal, the appellant complainant has presented this appeal along with the application for grant of special leave. 7. 6. Being aggrieved by the said judgment of acquittal, the appellant complainant has presented this appeal along with the application for grant of special leave. 7. Upon service of notice of the application, the respondent-accused has appeared through his Counsel, I have heard both sides. Perused the records and the judgment under appeal. 8. Perusal of the judgment under appeal indicates that the learned Magistrate has held that the notice said to have been issued by the appellant and sent through registered post acknowledgment due has been returned unserved with a postal endorsement that ‘the addressee was not in station’. However, according to the appellant, the notice sent by certificate of posting is deemed to have bee served on the respondent. Thus, the appellant relied on the deemed to service of notice sent by certificate of posting. The learned Magistrate during the course of judgment under appeal has observed that since the respondent has not been properly described in the notice, it cannot be assumed that the notice sent by certificate of posting has been served on the respondent. In the notice issued by the appellant, the respondent has been described as “H.N.Lakshmana S/o. Narasimhegowda”. The same description was also furnished in the complaint. However subsequently, the complainant filed an application to amend and to correct the father’s name of the respondent-accused. Thus even according to the complainant, the father’s name of the accused is S.Narasimhaiah and not Narasimhegowda. From this, it is clear that the notice said to have been sent by Certificate of Posting was not properly addressed to the respondent as admittedly lit was addressed as “H.N.Lakshmana S/o Narasimhegowda” through the accused is “H.N.Lakshmana S/o S. Narasimhaiah”. 9. Section 27 of the Mysore General Clauses Act, 1899, provides for deemed service provided the document is properly addressed and posted. In view of the fact that the notice sent by the complainant was not properly addressed to the respondent, there cannot be a deemed service of such notice. Therefore, the learned Magistrate is justified in holding that the complainant has failed to prove one of the important ingredient of the offence punishable under Section 138 of the Act. 10. Reading of Section 138 of the Act makes it clear that several factors constitute cause of action for the drawee of the cheque to file a complaint. Therefore, the learned Magistrate is justified in holding that the complainant has failed to prove one of the important ingredient of the offence punishable under Section 138 of the Act. 10. Reading of Section 138 of the Act makes it clear that several factors constitute cause of action for the drawee of the cheque to file a complaint. The cause of action for the drawee of the cheque to file a complaint would arise upon failure of the drawer of the cheque to pay the amount covered under the cheque within 15 days from the date of receipt of the notice issued by the drawee making a demand for payment of money. Therefore, the failure on the part of the drawer of the cheque to pay the amount covered under the dishonored 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 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 on the respondent-accused. As admittedly the notice sent by registered post was not served on the respondent-accused and since the notice stated to have been sent by certificate of posting was not properly addressed, there cannot be a deemed service of notice. Therefore, the learned Magistrate is justified in holding that the complainant has not complied with the requirement of provision of Section 138 of the Act. 11. Apart from this technical defect of the complaint, the learned Magistrate has also noticed that the complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs. 4,50,000/-. Admittedly, no document evidencing the loan transaction has come into existence. Therefore, the learned Magistrate is justified in holding 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 has also noticed that according to the complainant, loan amount was paid to the accused to the presence of the two persons namely Jakir Hussain and Ramalingegowda. However, for the reasons best known to the complainant, none of these witnesses were examined before the learned Magistrate. Therefore, the learned magistrate has rightly drawn an adverse inference against the complainant. However, for the reasons best known to the complainant, none of these witnesses were examined before the learned Magistrate. Therefore, the learned magistrate has rightly drawn an adverse inference against the complainant. It is also noticed by the learned Magistrate that on the basis of the very cheque, the complainant had filed a civil suit in O.S. No. 85 of 2004 on the file of the Civil Judge (Senior Division), Maddur which was later renumbered as O.S. No. 68 of 2006 on the file of the Civil Judge (Senior Division), Malavalli. The copies of the plaint, the evidence of the plaintiff therein and the judgment passed in the said suit have been produced by the accused and marked as Exs.D.4 to D. 6. 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 of an agricultural land for a consideration of Rs. 44,000/- and the said amount has been adjusted towards the amount due to him under the cheque as claimed in the suit. Therefore, he claimed the balance amount. Nevertheless, it was contended by the respondents-accused who was the defendant in the said suit that on the same date he was forced to execute another sale deed in favour of H.R. Nagaraj S/o Ramaiah in respect of a house property and the entire sale consideration of Rs. 4,16,000/-has been taken away by the appellant stating that the suit filed by him is compromised. However, the appellant-plaintiff did not concede the said fact. Ultimately, the Trial Court dismissed the suit holding that the plaintiff has received the entire amount and the matter has been settled. Against the said judgment, the appellant herein filed as appeal before the learned District Judge at Mandya in R.A. No. 88 of 2007 and the said appeal came to be dismissed by judgment dated 4-4-2008 and copy of the said judgment is marked as Ex. D. 7. It is not shown by the appellant that he has filed further appeal against the said judgment. Thus the suit filed by the complainant him for recovery of the amount covered under the cheque has been dismissed and it has become final holding that the appellant has received the amount covered under the cheque. From this, it is manifestly clear that the appellant has received the entire amount of Rs. Thus the suit filed by the complainant him for recovery of the amount covered under the cheque has been dismissed and it has become final holding that the appellant has received the amount covered under the cheque. From this, it is manifestly clear that the appellant has received the entire amount of Rs. 4,50,000/-covered under the cheque along with some interest and inspite of the same, he wanted to pursue the complaint filed for offence punishable under Section 138 of the Act. 13. Having regard to facts and circumstances of the case, I do not see any error committed by the learned Magistrate in acquitting the accused of the charge levelled against him for offence punishable under Section 138 of the Act. The judgment of the learned Magistrate does not suffer from any illegality or irregularity. Therefore, there are no grounds to grants special leave to the appellant to prefer this appeal. 14. Accordingly, the application for grant of special leave and the appeal are rejected.