Karnataka High Court
Sri.Bhavan Gowda vs Sri.Madhu A.S on 20 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:11625
CRL.A No. 2204 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO. 2204 OF 2024
BETWEEN:
1. SRI. BHAVAN GOWDA
S/O LATE BETTE GOWDA
AGED ABOUT 40 YEARS
R/O NO.7/1A, AMRUTH MUNERALS
PANTHARAPALYA, MYSURU ROAD
BENGALURU-560 026.
...APPELLANT
(BY SRI. K.R. LINGARAJU, ADVOCATE)
AND:
1. SRI. MADHU A.S.,
S/O SHAMBULINGE GOWDA
AGED ABOUT 41 YEARS
R/O NO.57, MUNESHWARA NAGARA
1ST CROSS, BOMMANAHALLI
Digitally signed
by DEVIKA M (NEARBY) OLD NAGAMMANNAPALYA
Location: HIGH ALSO AVAILABLE AT
COURT OF NEAR GOODWILL GARMENTS
KARNATAKA OLD MANGAMMANAPALYA
BENGALURU-560 065.
...RESPONDENT
(BY SRI. K.R.LAKSHMINARAYANA RAO, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.PC (FILED U/S 419(4) BNSS) PRAYING TO SET
ASIDE THE JUDGMENT IN C.C.NO.3451/2019 DATED
21.10.2024 PASSED BY THE XII ADDL. JUDGE COURT OF
SMALL CAUSES AND ADDL.C.J.M, BENGALURU AND ALLOW THE
CRIMINAL CASE NO.3451/2019 AS PRAYED FOR.
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NC: 2025:KHC:11625
CRL.A No. 2204 of 2024
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. I have heard learned
counsel for appellant and learned counsel for the respondent.
2. This appeal is filed challenging the order of acquittal
of the accused for the offence under Section 138 of N.I. Act in
C.C.No.3451/2019.
3. The factual matrix of the case of complainant before
the Trial Court is that accused is the friend of the complainant
and on the basis of the said acquaintance, the accused had
borrowed money of Rs.6,00,000/- on 26.03.2019 from the
complainant and he also promised to pay the amount within six
months and failed to repay the amount to the complainant.
When the complainant demanded to repay the amount, the
accused has issued cheque dated 26.03.2019 and when the
cheque was presented, the same was returned with an
endorsement 'insufficient funds' on 27.03.2019. Hence, legal
notice was issued and the accused did not come forward to
NC: 2025:KHC:11625
make the payment. Hence, complaint was filed and cognizance
was taken, the accused was secured and he did not plead
guilty.
4. In order to prove his case, the complainant
examined himself as P.W.1 and got marked the documents as
Exs.P1 to P10. The accused examined himself as D.W.1, but
not marked any document.
5. The Trial Court having considered the material on
record, acquitted the accused only on the ground that
proceedings was initiated after the prescribed time i.e., after 31
days of receipt of endorsement from the bank. As per Section
138(b), the payee or the holder in due course of the Cheque,
as the case may be, makes a demand for the payment of the
said amount of money by giving a notice in writing, to the
drawer of the Cheque, within 30 days of the receipt of
information by him from the bank regarding the return of the
Cheque as unpaid. But, in this case, the complainant has
issued notice after 32 days of the receipt of the information, as
per General Clauses Act, there was one day delay, if it is
excluded. Hence, the accused is entitled for acquittal.
NC: 2025:KHC:11625
6. Learned counsel for the appellant brought to notice
of this Court Ex.P2-endorsement issued by the bank and
though it was returned, the communication was made only on
30.03.2019 not on 27.03.2019 and Trial Court failed to
consider the same and brought to notice of this Court the print
date mentioned as 30.03.2019 and reasoning assigned by the
Trial Court is not correct.
7. Per contra, learned counsel for the respondent
would contend that in the document itself, it is mentioned as
memo dated 27.03.2019 and there is no pleading to the effect
that the same was communicated on 30.03.2019 and Trial
Court has not committed any error.
8. Having heard learned counsel for the appellant and
learned counsel for the respondent and also taking note of the
material on record, the Trial Court has not considered the
matter on merits and acquitted the accused on the ground of
technicality and the Trial Court ought to have taken note of
document at Ex.P2, wherein the print date is mentioned as
30.03.2019 though it is mentioned return date as 27.03.2019
and the very approach of the Trial Court is erroneous and
NC: 2025:KHC:11625
matter requires interference with regard to the finding of the
Trial Court and the impugned order of acquittal of the accused
is passed only on the ground that proceeding was initiated after
prescribed period as provided under Section 138(b) which is
erroneous and the same is set aside. Hence, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order is set aide and matter is
remitted back to the Trial Court to consider the
matter on merits. All the contentions of the parties
are kept open.
(iii) The parties are directed to appear before the Trial
Court on 25.04.2025 without expecting any
separate notice.
(iv) The Trial Court is directed to dispose of the matter
within two months from today, since matter has to
be considered on merits.
Sd/-
(H.P.SANDESH)
JUDGE
ST
