Rajesh Naik vs V Ratnamma
2021 Latest Caselaw 6209 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 15TH DAY OF DECEMBER, 2021

                       BEFORE:

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

         CRIMINAL APPEAL NO.1078 OF 2017

BETWEEN

RAJESH NAIK
AGED ABOUT 37 YEARS
S/O MAHADEVA NAIK
R/AT NO.669, 23RD CROSS ROAD
KUMARASWAMY LAYOUT, 1ST STAGE
BENGALURU - 560 078
                                             ...   APPELLANT

[BY SRI RAJESH G.S., ADVOCATE
 SMT. NALINA.K, ADVOCATE APPOINTED AS
  AMICUS CURIAE V/O DATED 10.12.2021]

AND

V. RATNAMMA
W/O GANGADHAR RAJ
AGED ABOUT 59 YEARS
R/AT NO.142, SARAKKI VILLAGE
NEAR RAMAMANDIR
J.P.NAGAR, 1ST STAGE,
BENGALURU - 560 078
                                         ...   RESPONDENT

[BY SRI A. VIJAY KUMAR BHAT, ADVOCATE]

                        ***

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ACQUITTAL
OF THE JUDGMENT DATED 02.05.2017 PASSED BY THE XXIII
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ACMM, BANGALORE IN C.C.NO.15910/2013 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138
OF N.I. ACT.

       THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                               JUDGMENT

This appeal is preferred by the complainant against

the impugned judgment passed by the trial Court,

acquitting accused/respondent for an offence punishable

under Section 138 of Negotiable Instruments Act, 1881

(hereinafter referred to as 'N.I Act' for short).

2. Heard both side and perused the trial Court

records.

3. The specific case of the complainant is that he

is a building contractor by profession. Accused had

entrusted house alteration work to him and towards labour

charges, issued a cheque bearing No.302577 dated

07.12.2012 for a sum of Rs.1,00,000/- drawn on Vijaya

Bank, J.C.Road Branch, Bengaluru in favour of

complainant, assuring that the said cheque will be

honoured on its presentation. He presented the cheque to

his banker namely Vijaya Bank on 07.12.2012. But the

bank officials informed him verbally that there was no

sufficient amount in the account of the accused. Once

again the complainant went to the bank personally on

09.12.2012 with a letter to honour the cheque, however,

there was no response by the bank. This fact was brought

to the notice of the accused by issuing a demand notice

through RPAD on 31.12.2012. The said notice was

returned unserved on 05.01.2013 with a shara "No such

person in the address". Since the amount mentioned in the

cheque was not paid even after issuance of legal notice,

accused committed an offence punishable under Section

138 of N.I. Act.

4. The complainant got himself examined as PW.1

and examined 3 more witnesses and got marked Exs.P1 to

P7. The defence got marked Ex.D1.

5. The trial Court after considering the oral and

documentary evidence on record acquitted the accused,

hence this appeal.

6. The defence taken by the accused is that the

cheque in question was given to one Nalini through the

complainant, but complainant without handing over the

cheque to Nalini, misused it. The learned counsel

appearing for appellant would contend that the accused by

cross-examining PW.1 has admitted that the cheque belong

to him and even the signature has not been disputed. As

such the presumption under Sections 118 and 139 is

available to the complainant. It is therefore contended that

the trial Court was not justified in acquitting the accused.

7. It is relevant to see, according to complainant,

on 07.12.2012 he went to the bank and presented the

cheque by filling a challan for deposit. But the concerned

bank officials verbally informed that there is insufficient

funds in the account of accused to pass the cheque.

Therefore, the complainant personally approached the

accused bank on 19.12.2012 and submitted the cheque

particulars in writing and enquired about the balance

available in the account of the accused. Since there was no

response or reply, he issued a legal notice to the accused

demanding the amount mentioned in the cheque. Thus, it

is clear that the cheque alleged to have been issued by the

accused was not dishonoured by the bank with any

endorsement. Admittedly, the complainant has not

produced the bank endorsement stating that Ex.P1-cheque

was dishonoured for any reasons. The trial Court has

observed that the endorsement of the bank is not produced

and therefore, a presumption arises that the cheque has

not been presented for encashment and proviso to Section

138 of N.I Act are not attracted.

8. Learned counsel for appellant has contended

that there are enough material to show that the cheque

was presented to the bank and since there was no

sufficient fund in the account of the accused the same was

returned.

9. The learned trial Court has observed that to

prove the said contention, complainant has not called upon

the bank authorities to prove that he has presented the

cheque and the same was returned or refused. Hence, the

trial Court was of the view that there was no cause of

action which arose to present the complaint.

10. Admittedly, the complainant has not produced

any bank endorsement to show that the cheque was

dishonoured or returned by the bank. Hence as rightly held

by the trial Court, the offence under Section 138 N.I Act is

not attracted against the accused. There are no grounds to

interfere with the findings recorded by the trail Court.

Hence, the following

ORDER

Appeal is dismissed.

Learned Amicus Curaie shall be paid a sum of

Rs.3,000/- (Rupees Three Thousand only) as honorarium

by the High Court Legal Services Committee.

Sd/-

JUDGE HB/-