Karnataka High Court
Mysuru District Women Co Operative Bank ... vs Sri. Chandrashekar R on 5 August, 2024
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NC: 2024:KHC:30858
CRL.A No. 287 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 287 OF 2023 (A)
BETWEEN:
MYSURU DISTRICT WOMEN CO OPERATIVE
BANK LIMITED
MYSURU CHAMARAJA DOUBLE ROAD,
CHAMARAJA MOHALLA, MYSURU,
REPRESENTED BY ITS MANAGING DIRECTOR,
SMT. SUMA N
MAJOR IN AGE.
...APPELLANT
(BY SRI. B S MAHENDRA.,ADVOCATE)
AND:
SRI. CHANDRASHEKAR R,
S/O LATE RUDRAPPA,
AGED ABOUT 47 YEARS,
R/AT D NO. 40, MIG-2,
LAKSHMIKANTHA NAGAR,
HEBBALU, MYSURU-17,
Digitally signed OFFICE ADDRESS- ASSOCIATE TEACHER,
by SHARADA GOVERNMENT LOWER PRIMARY SCHOOL,
VANI B HALLADAMADAHALLI, GUNDLUPETE TALUK.
Location: ...RESPONDENT
HIGH COURT (BY SRI.VIJAY KUMAR K S.,ADVOCATE)
OF
KARNATAKA THIS CRL.A FILED U/S 378(4) OF CR.PC PRAYING TO SET
ASIDE THE JUDGMENT DATED 03.12.2022 PASSED IN
C.C.NO.678/2016 ON THE FILE OF THE PRL.CIVIL JUDGE AND
J.M.F.C MYSURU AND ALLOW THE COMPLAINT AS PRAYED FOR WITH
COST THROUGHOUT.
THIS CRL.A COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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NC: 2024:KHC:30858
CRL.A No. 287 of 2023
ORAL JUDGMENT
The appellant herein being the complainant in
C.C.No.678/2016 on the file of the learned Principal Civil Judge
and JMFC, Mysuru is impugning the judgment dated
03.12.2022 acquitting the respondent/accused for the offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 [for short, 'the N.I. Act'].
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Heard Sri. B.S.Mahendra, learned counsel for the
appellant. Learned counsel for the respondent is absent No
Representation. Perused the materials including the Trial Court
records.
4. Learned counsel for the appellant contended that
the appellant is a Co-operative Bank which had lent an amount
of Rs.1,80,000/- to the accused on 27.07.2015. As security,
the accused had issued the cheque in question but later he had
not repaid the loan amount. The cheque which was given as
security was presented for encashment towards the amount
that was due from the accused. The cheque was dishonoured
as there was 'insufficient funds' in the account of the accused.
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Legal notice was issued which was returned with shara
'addressee left, hence returned to sender'. The accused had
not repaid the cheque amount, thereby he has committed the
offence punishable u/s.138 of N.I. Act.
5. Learned counsel submitted that the complainant has
examined himself as PW-1 and got marked documents Ex.P1 to
Ex.P6 in support of his contention. The accused has not
stepped into the witness box but got marked Ex.D-1 in support
of his defence. Even though there are no material to dispute
the contention of the complainant as there is no reply notice
nor there is evidence by the accused, the trial court proceeded
to acquit the accused on flimsy grounds. Moreover, the
complainant has proved the existence of legally recoverable
debt. The reason assigned by the trial court are not justifiable
and hence prays for allowing the appeal in the interest of
justice.
6. In view of the contentions urged by learned counsel
for the appellant and on going through the materials on record,
the point that would arise for my consideration is:
"Whether the impugned judgment of acquittal suffers
from perversity or illegality, which calls for
interference by this court?"
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7. My answer to the above point is in the 'negative' for
the following:
REASONS
8. It is the specific contention of the complainant as
per the complaint that it is a co-operative bank that had lent an
amount of Rs.1,80,000/- to the accused on 27.07.2015 and as
security the cheque bearing No.164968 was issued by the
accused when he availed the loan. The said cheque when
presented for encashment was dishonoured as there was
'insufficient funds'. The cheque in question dated 27.01.2016
is marked as Ex.P1. Even according to the complainant the
cheque in question was issued on 27.07.2015 as security which
was presented for encashment on 27.01.2016. The legal notice
as per Ex.P3 came to be issued. Ex.P-5 is postal envelope
returned to the sender with the postal endorsement "addressee
left, hence returned to sender". Therefore admittedly the
notice was not served on the accused.
9. It is pertinent to note that PW-1 is examined to
prove the contention of the complainant. During cross
examination of PW1 he categorically stated that the accused is
the resident of Bettada Madahalli village, but the address
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mentioned in Ex.P3 is of Hallada Madahalli. There is absolutely
no explanation given by the complainant or PW-1 as to why
notice was issued to Hallada Madahalli when the accused was
working at Bettada Madahalli. Even according to PW-1 it may
be a mistake to mention the name of village as Hallada
Madahalli instead of addressing it to Bettada Madahalli. Under
such circumstances, it cannot be said that there was
compliance of requirement u/s.138 of N.I. Act, i.e., service of
notice to the accused. Unless it is shown that the legal notice
as per law is served upon the accused, it cannot be said that
the complainant has made out grounds seeking conviction of
the accused.
10. It is the contention of the complainant that the
accused had borrowed a loan amount of Rs.1,80,000/- during
2015 by executing relevant documents. Not even a scrap of
paper is produced before this court to prove lending of amount.
Not even statement of loan is produced to show the legally
recoverable debt from the accused. There is absolutely no
explanation by PW-1 for not producing the relevant documents
when the complainant is a co-operative bank which is supposed
to maintain the relevant records. There is no justification for
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not producing any material that the amount was due from the
accused and also for not serving notice on the accused at the
place where he was working. Under such circumstances, the
accused is entitled for acquittal.
11. I have gone through the impugned judgment
passed by the Trial Court. It has taken into consideration all
the oral and documentary evidence placed before it and has
arrived at a right conclusion. I do not find any perversity or
illegality in the judgment passed by the Trial Court. There are
no reasons to interfere with the order passed by the Trial
Court. Hence, I answer the above point in the Negative and
proceed to pass the following:
ORDER
The Criminal Appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
Snb/
