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2011 DIGILAW 339 (KAR)

M. Sureshchandra Shetty v. Mohammed Kasim

2011-03-24

K.N.KESHAVANARAYANA

body2011
JUDGMENT K.N. KESHAVA NARAYANA, J.—This appeal filed under Section 378(1) and (4) of Cr. P.C. on obtaining special leave of this Court, is directed against the judgment dated 3.8.2004 passed by the V JMFC, Mangalore, in C.C. No. 1856/2003 dismissing the complaint filed by the complainant herein for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, ‘N.I. Act’) and acquitting the respondent-accused of the said offence. 2. Sri. M. Lokayya Shetty, the father of the petitioner herein filed a complaint under Section 138 read with 142 of the N.I. Act and Section 200 of Cr. P.C. against the respondent alleging the offence punishable under Section 138 of the N.I. Act, inter alia contending that for discharge of the debt due by him, the accused issued the cheque in question to the complainant for a sum of Rs. 1,50,000/- and when the said cheque was presented for encashment, the same was returned with the Banker’s endorsement ‘Account closed’ and in spite of service of notice, the accused failed to pay the amount covered under the cheque. The respondent-accused pleaded not guilty for the accusation made against him and claimed to be tried. 3. Before the case could be posted for evidence, the original complainant died. Therefore, the present petitioner, the son of the original complainant, came on record as his legal representative and continued the proceedings. During the trial, the petitioner herein examined himself as P.W. 1 and his mother, the wife of the original complainant was examined as P.W. 2. Exs. P1 to P12 were marked. 4. The respondent-accused during his examination under Section 313 of Cr. P.C. denied all the incriminating circumstances appearing against him. His principal defence was that, earlier, there were some monetary transactions between him and the original complainant and at the time of availing the loan, he had delivered a blank cheque to the original complainant as security and subsequently, the said cheque has been misused by the original complainant. It was also his defence that no notice as required under Section 138(b) of the N.I. Act was served on him. In respect of his defence, the respondent-accused examined himself as DW. 1 and also examined one more witness as DW.2. 5. It was also his defence that no notice as required under Section 138(b) of the N.I. Act was served on him. In respect of his defence, the respondent-accused examined himself as DW. 1 and also examined one more witness as DW.2. 5. After hearing both sides the learned Magistrate by the judgment under appeal dismissed the complaint holding that though the complainant has proved the existence of the debt and also issuance of the cheque for discharge of the said debt, and as also dischonour of the cheque, but has failed to prove the service of notice required to be issued under Section 138(b) of the N.I. Act. Consequently, the learned Magistrate acquitted the respondent-accused. Aggrieved by the said judgment, the complainant is before this Court in this appeal. 6. I have heard Sri. Pramod Kulkarni for Sri. U.P. Muliya, counsel for the appellant and Sri. Parineeth S. Channal for the respondent-complainant. I have perused the records. 7. As noticed supra, the learned Magistrate having regard to the evidence on record and also the specific defence put-forth by the respondent-accused, has recorded a finding that the complainant has satisfactorily proved the existence of debt due by the respondent and issuance of the cheque in question for discharge of the said debt. For this purpose, the learned Magistrate has also drawn presumption under Section 139 of the N.I. Act. Having perused the evidence both oral and documentary, I do not find any error in the said finding of the learned Magistrate that the complainant has proved the existence of the debt and issuance of the cheque for discharge of the said debt. There is no serious dispute that the cheque in question relates to the account held by the respondent with the Banker and the evidence on record further established, that it bears the signature of the respondent. There is also no serious dispute that the said cheque when presented for encashment came to be dishonoured with the Bankers’ endorsement ‘Account Closed’. However, mere issuance of the cheque for discharge of the debt or liability and its dishonour by itself would not constitute the offence punishable under Section 138 of the N.I. Act. The offence under Section 138 of the N.I. Act comprised of several components. However, mere issuance of the cheque for discharge of the debt or liability and its dishonour by itself would not constitute the offence punishable under Section 138 of the N.I. Act. The offence under Section 138 of the N.I. Act comprised of several components. The important component to complete the offence is, issuance of notice by the drawee or the holder in due course of the cheque, as the case may be to the drawer as required by clause (b) of Section 138 of the N.I. Act, demanding the drawer of the cheque to pay the amount covered under the cheque, which is returned unpaid. Therefore, it is for the drawee or the holder in due course of the cheque, as the case may be, to prove that the notice as required by Clause (b) of Section 138 of the N.I. Act has been issued and is duly served on the drawer. It is only upon the failure of the drawer of the cheque to pay the amount covered under the cheque within 15 days from the date of receipt of such demand, the offence under Section 138 of the N.I. Act is complete. The very object of requiring notice under Section 138(b) of the N.I. Act is to give an opportunity to the drawer of the cheque to make amends to his deeds in not honouring the cheque. In the case on hand, according to the findings recorded by the learned Magistrate, the complainant has failed to prove the service of notice on the respondent-accused. The learned Magistrate has based this finding in the light of the contradictory evidence of P.Ws. 1 and 2. According to the averments made in the original complaint, the complainant sent legal notice dated 8.11.2002 to the accused calling upon him to pay the amount within 15 days of the said notice. It is further averred in the complaint that the said legal notice was served on the accused by the complainant personally on 8.11.2002 at the address of the complainant as stated in the cause title. Thus, according to the complaint averments, the statutory notice as required by Section 138(b) of the N.I. Act was served on the respondent-accused in the residential house of the complainant situated at Ballal Bagh, Mangalore. However, by the time the matter could reach for trial, the original complainant died. Thus, according to the complaint averments, the statutory notice as required by Section 138(b) of the N.I. Act was served on the respondent-accused in the residential house of the complainant situated at Ballal Bagh, Mangalore. However, by the time the matter could reach for trial, the original complainant died. His son, who came on record as legal representative, examined as P.W. 1, has stated in his examination-In-chief as extracted in the judgment under appeal that his father served the legal notice dated 8.11.2002 to the accused personally on 8.11.2002 itself in his (P.W. 1) presence after calling the accused to their residence. According to his evidence, the accused acknowledged the receipt of the legal notice by affixing his signature and the date of receipt as 8.11.2002 on the copy of the said legal notice. Whereas, in the cross-examination P.W. 2, the wife of the original complainant has stated that the notice-Ex. P7 was served on the accused in Athena Hospital where her husband had been admitted. The respondent-accused both during the cross-examination of P.W. 1 & 2 as well as in his examination-in-chief has asserted that the notice as per Ex. P7 has not been served on him and that the signatures found on Ex. P7 and Ex. P7(b) and also signature found on the letter marked as Ex. P8 are not his signatures. In the light of such specific denial by the accused, the contradiction in the evidence of P.Ws. 1 and 2 with regard to the alleged place of service of notice assumes greater importance. If according to P.W. 2, her husband had been admitted in Athena Hospital as on 8.11.2002, i.e., the date of service of notice, the said notice could not have been served on the accused in person in the house of the complainant. Similarly, if the original complainant was in the house, there was no reason as to why the notice could be served on the accused in Athena hospital. Either of one is false. P.W. 1 does not say that when notice was served on accused in the house, P.W. 2 was present. Similarly, P.W. 2 has not said that when the notice was served on the accused in Athena Hospital, P.W. 1 was also present. Either of one is false. P.W. 1 does not say that when notice was served on accused in the house, P.W. 2 was present. Similarly, P.W. 2 has not said that when the notice was served on the accused in Athena Hospital, P.W. 1 was also present. Therefore, in my opinion, the light of this glaring contradiction and inconsistent evidence, the learned Magistrate is justified in holding that the complainant has failed to prove the service of notice on the accused. When the complainant has taken up a specific stand that the notice as required by Section 138(b) of the N.I. Act was served personally on the accused, it was for him to prove the said fact beyond reasonable doubt. The evidence of P.Ws. 1 and 2 is not satisfactory to hold that the notice as per Ex. P7 has been served on the accused. Though it is the case of the complainant that after receipt of notice as per Ex. P7, the accused sent a reply as per Ex. P8, the accused has denied this fact. But there is absolutely no satisfactory evidence on record to show that Ex. P8(a) is the signature of the accused. It is pertinent to note that in the cross-examination P.W. 1, he has stated as under: “xxx xxx xxx” …………In the light of the above answer elicited in the cross-examination of P.W. 1, his evidence that in his presence Ex. P7 was served on the accused cannot be believed. In the light of the specific denial by the accused, the complainant also did not take steps to get the disputed signature found on Exs. P7 and P8 referred to the handwriting expert for comparison with the admitted signature of the accused. Thus, there is no acceptable evidence to show that the notice as per Ex. P7 was served on the respondent-accused. Therefore, 1 find no error in the judgment of the learned Magistrate holding that the offence punishable under Section 138 of the N.I. Act is not complete, therefore, the accused cannot be held guilty for the said offence. In this view of the matter, the learned Magistrate is justified in acquitting the accused. 8. Having regard to the discussions made above, I find no perversity or illegality in the judgment under appeal calling for interference by this Court. Therefore, the appeal lacks merit. Hence, the appeal is dismissed.