Sri.Veeramaheshwara Pattina ... vs Sri.Karithi Kumar M
2023 Latest Caselaw 7836 Kant

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                                                                   NC: 2023:KHC-D:13495
                                                                    CRL.A No. 100210 of 2016




                                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                        DATED THIS THE 20TH DAY OF NOVEMBER, 2023

                                                           BEFORE

                                  THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

                                            CRIMINAL APPEAL NO. 100210 OF 2016

                                 BETWEEN:

                                 SRI.VEERAMAHESHWARA PATTINA SOUHARDHA,
                                 SAHAKARI NIYAMATI-GANGAVATHI.
                                 THROUGH THE MANAGER,
                                 SRI. MALLIKARJUN MAHADEV K.,
                                 AGE: 35 YEARS, OCC: MANAGER,
                                 R/O: EDIGA COLONY-SIDDIKERI ROAD,
                                 GANGAVATHI, DIST: KOPPAL.
                                                                                 ... APPELLANT
                                 (BY SRI. NEELENDRA D. GUNDE, ADVOCATE)

                                 AND:

                                 SRI. KARTHIK KUMAR M. S/O MANJUNATH,
                                 AGE: MAJOR, OCC: BUSINESS,
                                 R/O: SRINIVAS GOUDA HOSPITAL,
                                 NEAR MATTI HOSPITAL- GANGAVATHI,
                                 DIST: KOPPAL.
              Digitally signed
                                                                                ... RESPONDENT
              by
              VIJAYALAKSHMI
VIJAYALAKSHMI M KANKUPPI
M KANKUPPI
              Date:
              2023.11.23
              16:47:19 +0530     (BY SRI. MAQBOOLAHMED M. PATEL, ADVOCATE FOR
                                  SRI. S.S. BETURMATH, ADVOCATE)

                                       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF
                                 CR.P.C., SEEKING TO ALLOW THIS CRIMINAL APPEAL BY SETTING
                                 ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
                                 08.07.2016 PASSED IN CRIMINAL CASE NO.965 OF 2015 PASSED BY
                                 THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS-
                                 GANGAVATHI FOR OFFENCE PUNISHABLE UNDER SECTION 138 OF
                                 NEGOTIABLE INSTRUMENT ACT AND CONVICT THE RESPONDENT, IN
                                 THE INTEREST OF JUSTICE AND EQUITY.

                                       THIS APPEAL IS COMING ON FOR FURTHER HEARING THIS
                                 DAY, THE COURT DELIVERED THE FOLLOWING:
                                    -2-
                                         NC: 2023:KHC-D:13495
                                           CRL.A No. 100210 of 2016




                             JUDGMENT

This appeal is filed challenging the judgment of

acquittal dated 08.07.2016 passed in C.C.No.965/2015 by

learned Prl. Civil Judge and J.M.F.C, Gangavathi and

praying to convict the respondent for the offence

punishable under Section 138 of The Negotiable

Instruments Act (hereinafter referred as 'N.I.Act' for

brevity).

2. Heard learned counsel for the appellant-

complainant and learned counsel appearing for

respondent-accused.

3. The appellant-Bank has filed a Private

Complaint against respondent-accused for the offence

punishable under Section 138 of N.I.Act by contending

that the respondent-accused borrowed loan of Rs.30,000/-

on 26.11.2010 and he had made part-payment of the loan

amount. The respondent-accused for making repayment of

the balance amount has issued a cheque bearing

No.146634 dated 09.07.2014 for a sum of Rs.50,000/-

NC: 2023:KHC-D:13495 CRL.A No. 100210 of 2016

drawn on C.S.S.P.S Bank, Gangavathi. The appellant-Bank

presented the said cheque for encashment and it came to

be returned as dishonored with an endorsement

'insufficient funds' on 10.07.2014. The appellant-Bank got

issued legal notice on 07.08.2014 and inspite of service of

notice, respondent-accused did not make any payment of

the cheque amount. Therefore, appellant-Bank filed

Private Complaint against the respondent-accused for the

offence punishable under Section 138 of N.I.Act.

4. Learned Magistrate took cognizance against

respondent-accused for the offence punishable under

Section 138 of N.I.Act and a criminal case came to be

registered in C.C.No.965/2015. The complainant's

manager has been examined as PW.1 and got marked

Exs.P1 to P10. The statement of respondent-accused has

been recorded under Section 313 of Cr.P.C. Thereafter,

after hearing the argument of both sides, learned

Magistrate has passed the impugned judgment of acquittal

NC: 2023:KHC-D:13495 CRL.A No. 100210 of 2016

dated 08.07.2016 in C.C.No.965/2015, which has been

challenged in this appeal.

5. Learned counsel for the appellant-complainant

would contend that the judgment of acquittal has been

passed only on the ground that the person who has filed

the complaint is not authorized by the complainant-

Sri Veeramaheshwara Pattina Souhardha Sahakari

Niyamit, Gangavathi and acquitted the respondent-

accused on that ground. He further contended that

appellant-complainant has produced Ex.P1 which shows

that the person who filed the complaint is an employee of

complainant. He contended that Ex.P.1 is an appointment

order of PW.1 and he has been appointed as a Manager of

the complainant's Bank. Therefore, he is authorized to

represent the complainant-Bank and initiate proceedings

on behalf of the complainant. Without considering all these

aspects, learned Magistrate has acquitted the respondent-

accused on technical grounds, even though the

complainant has established the other ingredients of the

NC: 2023:KHC-D:13495 CRL.A No. 100210 of 2016

offence under Section 138 of N.I.Act. With this, he prayed

to allow the appeal, set-aside the judgment of acquittal

and to convict the respondent-accused for the offence

punishable under Section 138 of N.I.Act.

6. Per contra, learned counsel for the respondent

would contend that the Ex.P.1 is only appointment order of

PW.1 as a Manager for a period of 1 year on probation and

as on the date of complaint that 1 year is over and no

other documents are produced to show that P.W.1 is

authorized to institute the proceedings on half of the

complainant. He further contended that the complainant

has not produced any By-laws to show that this Manager

of Sri Veeramaheshwara Pattina Souhardha Sahakari

Niyamit, Gangavathi is authorized person to represent the

said Sri Veeramaheshwara Pattina Souhardha Sahakari

Niyamit, Gangavathi. Considering the said aspect, learned

Magistrate has righty acquitted the respondent/accused.

With this, he prayed to dismiss the appeal.

NC: 2023:KHC-D:13495 CRL.A No. 100210 of 2016

7. The respondent has availed the loan from the

appellant/complainant and for making repayment of said

loan, he has issued Ex.P.3-cheque. The said cheque came

to be dishonored for want of funds. In spite of service of

legal notice, respondent/accused did not repay the cheque

amount and therefore, the proceedings are initiated

against the respondent/accused for the offence punishable

under Section 138 of N.I.Act. The trial Court on

appreciation of evidence on record has held that the

respondent/accused issued cheque in favour of the

appellant/complainant for making repayment of the loan

amount and it came to be dishonored for want of funds

and answered point Nos.1 and 2 in the affirmative.

8. The trial Court has answered point No.3 in the

affirmative holding that the accused has rebutted

presumption available under Section 138 of N.I.Act while

holding so trial Court has taken into consideration that the

person, who filed complaint namely P.W.1 has not

NC: 2023:KHC-D:13495 CRL.A No. 100210 of 2016

produced documents as on the date of filing of the

complaint that he is competent to file complaint.

9. The complainant is institution namely,

Sri Veeramaheshwara Pattina Souhardha Sahakari

Niyamit, Gangavathi. The institution has been registered

as a Co-operative Society with Assistant Registrar of Co-

operative Society of Koppal. Ex.P.2 is the certificate of

registration. The By-law of said Society has not been

produced either before the trial Court or before this Court

to ascertain, who is authorized person to sue or to be sued

on behalf of said Society.

10. Ex.P.1 is appointment order of appointing P.W.1

as Manager on 05.06.2008 and that appointment is for a

period of 1 year on probation. Even though it is presumed

and assumed that he has continued in his employment as

a Manager after completing 1 year, there is no document

to show that the Manager is authorized to represent the

Society and file the complaint. The complainant has not

produced any resolution passed by the said Society

NC: 2023:KHC-D:13495 CRL.A No. 100210 of 2016

authorizing the P.W.1 to file complaint on behalf of

complainant.

11. Considering the said aspect, the trial Court has

rightly answered the point No.3 and rightly acquitted the

respondent/accused. There are no grounds to interfere

with judgment of acquittal passed by the trial Court. In the

result, the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

AM & AC CT:BCK