Karnataka High Court
Hemalatha Niranjan vs M A Shanmuka on 9 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2025:KHC:677
CRL.A No. 220 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 220 OF 2019
BETWEEN:
HEMALATHA NIRANJAN
W/O NIRANJAN Y C
AGED ABOUT 31 YEARS
R/AT No.106, TIRUMALA ELTIE
80 FEET ROAD, NEAR SAI BABA TEMPLE
AREKERE, BTM 6TH STAGE
BENGALURU - 560 076.
...APPELLANT
(BY SRI LAKSHMIKANTH K, ADVOCATE)
AND:
Digitally signed by
LAKSHMINARAYANA
M A SHANMUKA
MURTHY RAJASHRI S/O LATE APPAJAPPA
Location: HIGH
COURT OF MADIHALLI VILLAGE, MOKALI POST
KARNATAKA ARUKALGUD TALUK
HASSAN DISTRICT - 573 216.
AND ALSO WORKING AT
M.A.SHANMUKHA
(POLITICAL SCIENCE LECTURE)
GOVERNMENT COLLEGE
BACHENAHATTI, MAGADI TALUK
RAMANAGARAM DISTRICT- 562 120.
...RESPONDENT
(BY SRI RAVINSON M, ADVOCATE)
-2-
NC: 2025:KHC:677
CRL.A No. 220 of 2019
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT ORDER DATED
11.12.2018, PASSED BY THE XIX A.C.M.M., AT BANGALORE IN
C.C.No.16423/2017, ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE
N.I ACT AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the complainant challenging the
judgment of acquittal dated 11.12.2018 passed in
C.C.No.16423/2017 by the XIX Additional Chief
Metropolitan Magistrate, Bengaluru, whereunder the
respondent -accused has been acquitted for the offence
punishable under Section 138 of Negotiable Instruments
Act, 1881 (hereinafter referred to as "N.I. Act" for
brevity).
2. The brief facts of complainant's case is that the
respondent -accused approached the complainant for
hand loan and she lent money of Rs.4,00,000/- to accused
on 04.01.2015. The accused in order to discharge the said
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loan has issued cheque bearing No.709159 dated
04.02.2017 for sum of Rs.4,00,000/- drawn on Vijaya
Bank, Tirumale, Magadi Taluk in favour of complainant.
The complainant presented the said cheque for
encashment and the said cheque came to be returned by
Bank with endorsement "Stale". Thereafter, the
complainant got issued legal notice dated 18.05.2017 and
same came to be returned with shara that "not claimed"
and notice sent to another address has been returned as
"the accused out of station". Thereafter, the complainant
filed complaint.
3. Learned Magistrate took cognizance and
registered case against the respondent -accused for
offence punishable under Section 138 of N.I.Act in
C.C.No.16423/2017. The plea came to be recorded. The
complainant has examined as P.W.1 and got marked
documents as Ex.P1 to P13. The statement of accused
came to be recorded under Section 313 of Cr.P.C. The
respondent -accused examined himself as D.W.1 and got
marked documents as Ex.D1 and D2. Learned Magistrate
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after hearing on both sides has formulated points for
consideration and passed impugned judgment of acquittal.
The said judgment of acquittal has been challenged in this
appeal.
4. Heard learned counsel for the appellant and
learned counsel for the respondent.
5. Learned counsel for the appellant would
contend that the complainant has presented the cheque
earlier for two times and it came to be dishounoured. He
submits that when cheque came to be presented at third
time it returned with reason "Stale". He submits that the
said endorsement amounts to dishonour of cheque and
attracts offence punishable under Section 138 of N.I Act.
With this, he prays to allow the appeal.
6. Learned counsel for the respondent would
contend that cheque has been dishonoured for reason
"Stale" and itself indicate that the cheque has not been
presented within the period of its validity. The cheque has
not been dishonoured for want of funds and therefore, the
offence punishable under Section 138 of N.I. Act is not
NC: 2025:KHC:677
attracted. One of the condition for offence punishable
under Section 138 of N.I. Act is that cheque should be
presented to the Bank for encashment within the period of
its validity. Considering the said aspect, learned Magistrate
has rightly passed impugned judgment of acquittal. With
this, he prays for dismissal of the appeal.
7. Having heard learned counsels, the point arises
for my consideration is
"Whether learned Magistrate has erred in
passing the judgment of acquittal of
respondent -accused for offence punishable
under Section 138 of N.I. Act."?
8. My answer to the above point is in the negative
for the following reasons.
The cheque is at Ex.P1 and it is dated 04.02.2017.
The complainant has presented the said cheque for
encashment and the said cheque came to be returned
under memo dated 06.05.2017 (Ex.P2) by HDFC Bank
with reason "Stale". The said endorsement itself indicates
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that the cheque has not been presented for encashment
within the period of its validity. One of the conditions for
offence punishable under Section 138 of N.I. Act is that
the cheque should be present to the Bank within the
period of its validity. In the case on hand the cheque has
not been presented to the Bank within a period of its
validity and therefore, it has been returned with reason
"Stale". The said cheque has not been dishonoured for
want of funds. The contention of learned counsel for the
appellant that earlier the complainant has presented the
cheque for two times and it came to be dishonoured for
want of funds cannot be accepted as cheque can be
presented any number of times till its validity. The
complainant has presented the cheque before the Bank
after its validity and therefore, the offence punishable
under Section 138 of N.I. Act is not attracted. Considering
the said aspect, learned Magistrate has rightly held that
offence punishable under Section 138 of N.I Act is not
attracted and passed the impugned judgment of acquittal.
NC: 2025:KHC:677
10. There are no reasons to interfere in the well
reasoned order passed by learned Magistrate.
In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
