Sri. Ganesh Reddy vs Sri. Venkatesha R
2021 Latest Caselaw 3527 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH DAY OF OCTOBER, 2021

                         BEFORE:

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.2134 OF 2016


BETWEEN

SRI. GANESH REDDY,
S/O. NAGAPPA REDDY,
AGED ABOUT 44 YEARS,
RESIDING AT DEVARABISANAHALLI,
SHANIMAHTHMA TEMPLE ROAD,
NEAR BRIGHT HIGH SCHOOL,
OUTER RING ROAD,
BENGALURU-560 037.                        ...   APPELLANT

[BY SRI. ANNAIAH C.V., ADVOCATE]


AND

SRI. VENKATESHA R.,
S/O. SRI. RUDRAPPA,
AGED ABOUT 28 YEARS,
RESIDING AT KADJAKKANAHALLI VILLAGE,
INDLAVADI POST,
JIGANI HOBLI,
ANEKAL TALUK,
BENGALURU DISTRICT-560 105.              ...    RESPONDENT

[RESPONDENT IS SERVED]

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     THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.,
PRAYING TO SET ASIDE THE ORDER DATED 03.11.2016 PASSED
BY THE XIX ADDL. CHIEF METROPOLITAN MAGISTRATE AT
BANGALORE IN P.C.R. NO.10307/2016 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
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       THIS CRIMINAL APPEAL COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

This appeal is preferred by the complainant against

the Judgment and Order dated 03.11.2016 passed by the

learned XIX Addl. C.M.M., Bengaluru, in PCR

No.10307/2016, wherein his complaint has been dismissed.

2. As per the complaint filed under Section 200 of

Cr.P.C. alleging an offence under Section 138 of the

Negotiable Instruments Act [hereinafter referred to as 'N.I.

Act' for short] it is averred that the accused, a family friend

of the complainant, approached him for financial assistance

and borrowed a sum of Rs.2,56,400/- for his family and

legal necessities, which was paid by way of cash on

20.01.2016. The accused assured that the said amount

will be repaid by 2nd week of June 2016. However, the

amount was not paid and on repeated demands by the

complainant, accused issued a cheque bearing No.169895

dated 15.07.2016 for a sum of Rs.2,56,400/- which on

presentation to the bank came to be dishonoured with a

shara 'funds insufficient' dated 04.08.2016. Thereafter, a

legal notice was issued on 24.08.2016 through RPAD and in

spite of receipt of the said notice, the accused failed to

make the payment and hence committed an offence under

Section 138 of the N.I. Act.

3. On presentation of the complaint and after

taking of cognizance, the sworn statement of the

complainant was recorded. Thereafter, the learned

Magistrate wide impugned Order dated 03.11.2016

proceeded to dismiss the complaint. It is observed in the

impugned order that the complainant in his complaint

averments has not stated as to when exactly the notice

issued by him was served on the accused and from which

date the cause of action to file the complaint arose. It is

also observed that the complainant has not even chosen to

produce the document/s before the Court to convince that

the notice issued by him on 24.08.2016 was duly served

upon the accused.

4. Perusal of the complaint filed under Section 200

of Cr.P.C., it is seen that as per the averments made, the

cheque in question was returned on 04.08.2016 and

thereafter legal notice dated 24.08.2016 by way of RPAD

was issued to the accused. It is stated that the

acknowledgement was not yet received. Hence, the

complainant filed a request letter to the Post Master before

the Post Office on 28.09.2016. Even though the

complainant has stated that the postal acknowledgement

will be produced at a later stage, the same was not

produced. The trial Court has observed in the impugned

Order that in spite of giving sufficient opportunity to the

complainant to produce the document/s before the Court

for having served the notice to the accused to calculate the

period of limitation to file the complaint, he has not chosen

to comply the direction issued by the Court. Therefore,

there is nothing on record to come to the conclusion that

the complainant has followed all the mandatory

requirements of Section 138 of the N.I. Act and the

complainant has presented the complaint well within the

period of limitation after service of notice to the accused.

5. It is well settled that the complaint alleging an

offence under Section 138 of the N.I. Act has to be filed

within the period of limitation as stipulated. All the

mandatory requirements of the said provision has to be

fulfilled before such complaint is filed. In the instant case,

though it is stated in the complaint that a legal notice

dated 24.08.2016 was issued by the complainant by way of

RPAD, however, there is no mention as to when the said

legal notice was served on the accused and when the cause

of action to file the complaint arose. In that view of the

matter, I see no illegality in the impugned order passed by

the trial Court in dismissing the complaint. Accordingly,

the appeal is dismissed.

Sd/-

JUDGE

Ksm*