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2020 DIGILAW 1915 (KAR)

K. R. Sudhir v. Pramodh Kumar K S

2020-09-30

H.B.PRABHAKARA SASTRY

body2020
JUDGMENT H.B.Prabhakara Sastry, J. - In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, 1973, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as 'N.I.Act'), the learned XXII Addl.Chief Metropolitan Magistrate and XXIV Addl.Small Causes Judge, Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), by the judgment dated 10.11.2010, passed in C.C.No.29549/2007, acquitted the respondent/accused of the said offence. Aggrieved by the same, the complainant/appellant has preferred the present appeal. 2. The summary of the case of the complainant in the trial Court is that, himself and the accused were well known to each other. The accused approached him in the month of February 2007, for a financial assistance of a sum of Rs. 1,50,000/- to meet his family necessities and to improve his sand business. On the promise that the accused would repay the loan amount within six months from the date of its receipt, the complainant gave him a cash loan of Rs. 1,50,000/- in February 2007. Towards his liability, the accused issued him a cheque bearing No.450367, dated 1.9.2007, for the said sum of Rs. 1,50,000/-, which was drawn on Canara Bank, Srirampuram Branch, Bengaluru, in favour of the complainant. When the complainant presented the said cheque for its realisation to his Banker, it came to be dishonoured for the reason of "insufficiency of funds". Thereafter, the complainant issued a statutory notice to the accused, both through Registered Post Acknowledgement Due and under Certificate of Posting. The notice sent through Registered Post Acknowledgement Due was returned with the postal shara "Absent intimation delivered", on 3.10.2007. However, the notice sent through Certificate of Posting was not returned, as such, it was served on the accused. Since the accused did not repay the cheque amount demanded in the notice, the complainant was constrained to institute a case against him in the trial Court for the offence punishable under Section 138 of N.I.Act. 3. The respondent who was the accused in the trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant examined himself as PW-1 and got marked documents from Exs.P-1 to P-6. The accused got himself examined as DW-1 and got marked one document at Ex.D-1. 3. The respondent who was the accused in the trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant examined himself as PW-1 and got marked documents from Exs.P-1 to P-6. The accused got himself examined as DW-1 and got marked one document at Ex.D-1. During the course of cross-examination of DW-1, the summons issued by the trial Court was marked as Ex.C-1. 4. After hearing both side, the trial Court by its impugned judgment dated 10.11.2010, acquitted the accused of the offence punishable under Section 138 of N.I.Act. 5. The trial Court records were called for and the same are placed before this Court. 6. In view of the fact that the learned counsel for the respondent failed to appear before this Court on several dates of hearing and also considering the fact that this appeal was nine years old appeal, this Court by its order dated 22.9.2020, appointed learned counsel Smt.P.V.Kalpana , as Amicus Curiae for the respondent. 7. Heard the arguments of learned counsel for the appellant and the learned Amicus Curiae for the respondent and perused the materials placed before this Court. 8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 9. After hearing, the points that arise for my consideration are : 1) Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint? 2) Whether the judgment under appeal deserves an interference at the hands of this Court? 10. Learned counsel for the appellant in his brief arguments canvassed only one point that the trial Court acquitted the accused holding that there is no proof of service of notice upon him. It ignored the fact that the house number of the accused which was 'J-152' was by oversight and mistake shown as 7152', however, the other details of the house including description, cross road, main road and area were all correct, which aspect, the trial Court did not notice. He further submitted that even if such a small mistake is there in the house number, the intimation about the postal article was delivered to the accused, which the trial Court failed to notice. He further submitted that even if such a small mistake is there in the house number, the intimation about the postal article was delivered to the accused, which the trial Court failed to notice. Stating that the trial Court did not notice the fact of non-returning of the notice sent under Certificate of Posting which leads to an inference that legal notice has been duly served upon the addressee, learned counsel prays for setting aside the impugned judgment and to allow the appeal as prayed for. 11. Learned Amicus Curiae for the respondent in her arguments submitted that admittedly the accused does not reside at the specific house number shown by the complainant in his legal notice and the address to which the legal notice was sent. The document marked at Ex.C-1, which is a Court summons, also go to show that the accused was not residing at the house number 7152', but, he was residing at different house bearing 'No.J-152'. As such, when the address itself is different, the mere non-returning of the notice said to have been sent under Certificate of Posting cannot be considered as a valid service of notice upon the accused. 12. The complainant got himself examined as PW-1, who in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint. Apart from contending that he has given a cash loan of a sum of Rs. 1,50,000/- to the accused to meet his business requirement and family necessities, the complainant has also got produced the cheque at Ex.P-1, which according to him was issued by the accused towards repayment of the loan. By producing a Banker's endorsement at Ex.P-2, the witness contended that the said endorsement shows the dishonour of the cheque for the reason of "insufficiency of funds". He has produced a copy of the legal notice at Ex.P-3 contending that the said notice was sent to the accused under Registered Post Acknowledgment Due as evidenced in the postal receipt at Ex.P-4. Further, even according to the witness (PW-1), the said registered post article alleged to have been carrying the notice in it was not delivered to the addressee i.e., the accused, but, it was returned to the sendor with the postal endorsement 'Absent intimation delivered'. He has produced the said postal endorsement at Ex.P-6. Further, even according to the witness (PW-1), the said registered post article alleged to have been carrying the notice in it was not delivered to the addressee i.e., the accused, but, it was returned to the sendor with the postal endorsement 'Absent intimation delivered'. He has produced the said postal endorsement at Ex.P-6. However, according to PW-1, the very same notice was also sent to the accused under Certificate of Posting as could be seen in Ex.P-5 and the said postal article has not returned to him. In the cross-examination of PW-1, the accused has denied the alleged loan transaction in toto. However, the complainant has stated that accused had given his residential address to him as 'J-152, 3rd Main, 11th Cross, Lakshminarayanapura, Bengaluru'. He denied a suggestion that intentionally he had sent the alleged legal notice to a different address where the accused was not residing. The witness admitted that the address shown in the notice and to which the said notice was sent, was showing a house number as 7152'. He admitted as true that very same address is shown both in the registered letter, as well in the legal notice. A suggestion was also made to PW-1 that complainant in connivance with the postal staff had got endorsed a wrong shara on the returned postal cover at Ex.P-6, however, the witness denied the same. A suggestion was also made to PW-1 suggesting that in 11th Cross, 3rd Main, there is no house in existence with house number 7152', the witness has stated that he does not know about the same. 13. The accused got himself examined as DW-1, who in his examination-in-chief, apart from denying the alleged loan transaction in toto, has also contended that no legal notice, much less, the notice under Certificate of Posting or an intimation about the registered postal article was ever received by him. He categorically stated that the complainant has purposely sent the legal notice by wrongly mentioning the address with its house number. He stated that he is residing not in house 'No.7152', but, in the house 'No.J-152', in the 11th Cross, 3rd Main, Lakshminarayanapura, Bengaluru. In his cross-examination, he has denied the suggestion made to him that he had availed a loan from the complainant and in return of the same, he had issued the cheque at Ex.P-1. He stated that he is residing not in house 'No.7152', but, in the house 'No.J-152', in the 11th Cross, 3rd Main, Lakshminarayanapura, Bengaluru. In his cross-examination, he has denied the suggestion made to him that he had availed a loan from the complainant and in return of the same, he had issued the cheque at Ex.P-1. The summons issued by the trial Court to the accused about the criminal case was got marked as Ex.C-1 in the cross-examination of DW-1 and the witness has admitted the address shown therein as his correct address. A suggestion was also made to the witness that the house 'No.J-152' was earlier having the old house number as 7152', the witness has denied the said suggestion and stated that never the said house was given a number as 7152'. The accused as DW-1 has also got produced a copy of his Voter's Identity Card (EPIC) and marked it as Ex.D-1 as his address proof. 14. In the light of the above evidence led by both side, the main point of dispute would be the alleged service of statutory notice from the complainant to the accused which is required under Section 138 of N.I.Act. Admittedly, the legal notice, a copy of which is at Ex.P-3 and the Certificate of Posting, which is at Ex.P-5 and the returned postal article said to be containing the legal notice in it, all bears the house number as 7152'. With respect to the rest of the description in the address, like the description of the cross, main road and area/extension, the same is not in dispute. Thus, the legal notice is admittedly sent to a house number showing it as 7152'. It is not the case of the complainant that accused had told him that he is a resident of house 'No.7152'. It is so because the complainant as PW-1 in his cross-examination himself has stated that the accused has given his address to him as 'J-152', 11th Cross, 3rd Main, Lakshminarayanapura, Bengaluru, which means, even before sending the legal notice after the alleged dishonour of the cheque, the complainant was fully aware that the house number in which the accused was residing is not 7152', but, it is 'J-152'. Still admittedly the legal notice was sent not to the house 'No.J-152', but to a house bearing 'No.7152'. Still admittedly the legal notice was sent not to the house 'No.J-152', but to a house bearing 'No.7152'. The said notice admittedly has not been received by the accused and has been returned with a postal shara 'Absent intimation delivered'. 15. Learned counsel for the appellant in his argument submitted that, had the address of the accused were to be a wrong address, then, the Postman would not have written the shara on the returned postal article as 'Absent ID'. He further stated that the notice sent under Certificate of Posting has also not been returned to the sendor. Therefore, there is valid service of notice upon the accused. He also relied upon an unreported judgment of this Court in Sri Chikkahonnaiah vs- Smt.Basamma @ Bindu, passed in Criminal Revision Petition No.142/2011, dated 02.09.2020, and submitted that in the said case also, the notice sent through Certificate of Posting was held to be taken as duly served upon the addressee. 16. Learned Amicus Curiae for the respondent in her argument drew the attention of this Court to Ex.C-1 and stated that the Court's summons sent to the accused showing the house number as 7152' has been returned unserved with the shara 'addressee has vacated the house'. However, a subsequent Court summons sent to the very same address, however showing the house number as 'J-152', has been duly served upon the accused. The said fact clearly establishes that accused was not residing at house 'No.7152', but, he was residing at house 'No.J-152'. The EPIC card (Voter's Identity Card) at Ex.D-1 also shows the house number where the accused is said to be residing as 'J-152' only. 17. Therefore, it is clear that the accused as on the date of tendering of the cheque dishonoured legal notice was not residing at the address house bearing 'No.7152', but, he was residing at the house bearing 'No.J-152' and this was also to the knowledge of the complainant. Therefore, the postal shara as 'Absent intimation delivered' is not a correct shara and highly suspicious. In that direction, the suggestion made to PW-1 in his cross-examination that the complainant in connivance with the postal staff has got an untrue shara written on Ex.P-6 cannot be disbelieved. Therefore, the postal shara as 'Absent intimation delivered' is not a correct shara and highly suspicious. In that direction, the suggestion made to PW-1 in his cross-examination that the complainant in connivance with the postal staff has got an untrue shara written on Ex.P-6 cannot be disbelieved. Had really the Postman had delivered the intimation to the accused at the address showing the house number as 7152', nothing had prevented the complainant to summon the Postman and lead his evidence by giving an opportunity to the accused to cross-examine him. That was required in the circumstances of the case, for the reason that, as observed above, the Court's summons sent to the accused showing the house number as 7152' was returned showing that he is not residing there, whereas, a subsequent summon issued by the very same Court to the very same accused sent to the house number showing it as 'J-152' has been duly served upon him. Further even in the present memorandum of appeal also, the house number of the respondent/accused is shown as 'J-152' only, but, not as 7152'. 18. Thus, when the complainant has not proved that even though there is discrepancy in the house number shown in the postal article (RPAD cover), still the Postman has tendered the notice to the accused, it cannot be believed that there was a valid tendering of legal notice to the accused. In that circumstance, mere non-return of the copy of the legal notice said to have been sent under Certificate of Posting would not come to the rescue of the complainant. It is also for the reason that, it is ultimately through an ordinary post, though under a Certificate. As such, if at all it has been returned, it is to the complainant only, who is the sendor of the letter. As such, a self-serving statement of the complainant that the said letter was not returned to him would not inspire any confidence to believe it without the Postman being examined on the said aspect in the present circumstances of the case. Therefore, the trial Court has rightly held that there is no reason to believe that the complainant had given a statutory notice as required under Section 138 of N.I.Act to the accused. 19. Therefore, the trial Court has rightly held that there is no reason to believe that the complainant had given a statutory notice as required under Section 138 of N.I.Act to the accused. 19. In so far as the reliance of the appellant to the observations made by this Court in Sri Chikkahonnaiah's case (supra) is concerned, admittedly in the said case there was no dispute about the correctness of the addressee/accused to which the notice was said to have been sent. Whereas, in the case on hand, since the very address itself proved to be an incorrect address, the said observation made in Sri Chikkahonnaiah's case (supra), would not enure to the benefit of the complainant/appellant. Therefore, suffice it to say that, even though the cheque said to have been issued by the accused as per Ex.P-1 is returned for the reason of "insufficiency of funds", but, the complainant has failed to establish that he had complied the other requirements under Section 138 of N.I.Act regarding giving of a legal notice to the accused and demanding the repayment of the cheque amount. The attempt of the complainant in proving the alleged guilt against the accused falls short of one of the necessary ingredients to be fulfilled. Thus, the finding given by the trial Court acquitting the accused of the alleged offence does not warrant any interference at the hands of this Court. 20. Accordingly, I proceed to pass the following order: ORDER The Criminal Appeal is dismissed. The judgment passed by the learned XXII Addl.Chief Metropolitan Magistrate and XXIV Addl.Small Causes Judge, Bengaluru City, in C.C.No.29549/2007, dated 10.11.2010, acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act, is confirmed. Registry to transmit a copy of this judgment along with trial Court records to the concerned Court without delay. The Court while acknowledging the service rendered by the learned Amicus Curiae for the respondent Smt.P.V.Kalpana, recommends honorarium of a sum of not less than Rs. 3,000/- to her payable by the Registry.