Karnataka High Court
M/S Oswal Minerals vs Mr M Loganathan on 23 October, 2024
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NC: 2024:KHC:42731
CRL.A No. 803 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 803 OF 2011 (A)
BETWEEN:
M/S OSWAL MINERALS
BY ITS PROPROETOR
SRI. M SHRIPAL KUMAR
NO.6, 2ND MAIN
RAMACHANDRAPURAM
BANGALORE - 560 021
REPRESENTED BY ITS GPA
HOLDER MR.SANJAY PITLIYA
AGED 30 YEARS
S/O ROSHANLAL PITLIYA
...APPELLANT
Digitally (BY SRI. VISHNU HEGDE, ADVOCATE)
signed by
NANDINI B G AND:
Location:
high court of MR. M. LOGANATHAN
karnataka
AGED ABOUT 48 YEARS
S/O. SRI. B. MANICKAM
R/AT NO.905/5, 6TH CROSS ROAD
JALAHALLI WEST
BANGALORE - 560 015
...RESPONDENT
(BY SRI. K. SUNDARAM, ADVOCATE (ABSENT))
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 25.05.2011
PASSED BY THE XIII ACMM, BANGALORE IN C.C.NO.3085/09 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL APPEAL, 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:42731
CRL.A No. 803 of 2011
ORAL JUDGMENT
The appellant being the complainant in CC No.3085 of
2009 on the file of the learned XIII Additional Chief
Metropolitan Magistrate, Bengaluru, is impugning the judgment
dated 25.05.2011 acquitting the respondent-accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act (for short 'the NI Act').
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the complainant has
filed the private complaint in PCR No.8661 of 2008 against the
respondent alleging commission of offence punishable under
Section 138 of NI Act. It is the contention of the complainant
that he entered into an agreement with the accused for
purchase of land measuring 15 acres and 14½ guntas in
Sy.Nos.55, 56, 57 and 58 situated at Doddakarenahalli Village,
Kasaba Hobli, Nelamanagala Taluk under the agreement of
sale. The accused being the owner of land agreed to sell the
property for Rs.3,22,61,250/-. Agreement of sale was entered
into on 20.03.2006. Advance amount of Rs.50,00,000/- was
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paid by the complainant to the accused. Subsequently, the
sale transaction did not materialized. The complainant
requested the accused to return the advance amount of
Rs.50,00,000/-. The accused has returned the amount of
Rs.20,00,000/- and issued the cheque-Ex.P2 for Rs.30,00,000/-
towards repayment of the legally enforceable debt. When the
cheque was presented for encashment, the same was
dishonored as payment stopped by the drawer. Legal notice
was issued to the accused informing him about the dishonor of
the cheque and calling upon him the repay the cheque amount.
Notice was returned unserved as door locked. However, the
accused has not repaid the cheque amount and thereby he has
committed the offence punishable under Section 138 of NI Act.
Accordingly, he requested the Trial Court to take cognizance
and to initiate legal action.
4. The Trial Court took cognizance of the offence and
summoned the accused. The accused has appeared before the
Trial Court and pleaded not guilty and claimed to be tried. The
complainant examined himself as PW1 and got marked Exs.P1
to 8 in support of his contention. The accused has denied all
the incriminating materials available on record in his statement
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recorded under Section 313 of Cr.P.C. but has not led any
evidence. The Trial Court after taking into consideration all
these materials on record, came to the conclusion that the
complainant is not successful in proving the guilt of the accused
beyond reasonable doubt. Accordingly, the impugned judgment
of acquittal came to be passed. Being aggrieved by the same
the complainant is before this Court.
5. Heard Sri Vishnu Hegde, learned counsel for the
appellant. Learned counsel for the respondent is absent. No
representation. Hence, his arguments is taken as NIL. Perused
the materials including the Trial Court records.
6. Learned counsel for the complainant submitted that
the agreement to sale was entered into between the
complainant and the accused. An advance amount of
Rs.50,00,000/- was paid under the agreement. Since the sale
transaction could not be finalized, the accused returned the
amount of Rs.20,00,000/- and towards repayment of
Rs.30,00,000/-, issued the cheque Ex.P2. When the cheque
was presented for encashment, it was dishonored as payment
stopped.
NC: 2024:KHC:42731
7. Learned counsel submitted that signatory to the
cheque - Ex.P2 is the accused himself. He has issued the
cheque as Proprietor of Perfect Tools. However, he has issued
the cheque in his individual capacity as Proprietor of the
business concern. The Trial Court committed an error in
disbelieving the version of the complainant that it was accused
who issued the cheque and therefore, he is liable to be
convicted for the offence punishable under Section 138 of NI
Act. Therefore, he prays for allowing the appeal and to convict
the accused for the offence as stated above.
8. 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
passed by the Trial Court suffers from perversity or
illegality and calls for interference by this Court?"
My answer to the above point is in the 'Negative' for the
following:
REASONS
9. It is the specific contention of the complainant that
he had entered into an agreement of sale with accused, which
NC: 2024:KHC:42731
is dated 20.03.2006 and had paid an advance amount of
Rs.50,00,000/-, of which, Rs.20,00,000/- was repaid by the
accused and towards balance amount of Rs.30,00,000/-, he
had issued the cheque as per Ex.P2. Immediately, after
dishonor of the cheque, legal notice as per Ex.P5 was issued by
the complainant to the accused in his individual capacity. It is
noticed that, nowhere it is stated that it was accused who
signed Ex.P2 as Proprietor of Perfect Tools. Strangely, in the
private complaint, the accused has arrayed in his individual
capacity. There is no averment to the effect that he is the
Proprietor of Perfect Tools and issued the cheque - Ex.P2 in his
capacity as such.
10. Even while referring to the accused in the notice as
well as in the private complaint, the accused was never
referred to as Proprietor of Perfect Tools, who is liable to pay
the amount. There is absolutely no reason as to why the
complainant has not referred the accused as Proprietor of
Perfect Tools, who issued the cheque - Ex.P2. The submission
of the learned counsel for the complainant that it was the sheer
mistake committed by the counsel will not cure the defect as it
goes to the root of the matter. Interestingly, the legal notice
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issued as per Ex.P5 was returned unserved as per Ex.P6 with
an endorsement door closed. Even as per the complainant,
notice is not served on the accused. Under such
circumstances, the offence under Section 138 of NI Act is not
complete. In view of all these facts and circumstances, the
accused is not liable for conviction.
11. I have gone through the impugned judgment of
acquittal passed by the Trial Court. It has taken into
consideration the oral and documentary evidence in light of the
averments made in the complaint and arrived at a right
conclusion. The reasons assigned by the Trial Court cannot be
termed as either perverse or illegal. Under such circumstances,
I do not find any reason to interfere with the same.
Accordingly, I answer the above point in the negative and
proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
*bgn/-
