1 : 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 18 TH DAY OF DECEMBER 2015 BEFORE THE HON BLE MR. JUSTICE BUDIHAL. R.B BETWEEN: CRIMINAL APPEAL No.2686/2009 M.R.ACHUT KUMAR S/O M RAMAKRISHNA AGED ABOUT 48 YEARS, PROPRIETOR OF VIVEK ENTERPRISES OPP:COURT, COLLEGE ROAD R/O KISHKINDE ASHRAM HOSPET, POST & TALUK BELLARY APPELLANT (BY SRI GODE NAGARAJA, ADV.) AND SHEKHAR S/O NOT KNOWN AGED ABOUT 40 YEARS, PROPRIETOR OF SHEKHAR TRANSPORT C/O VIJAL NAIDUR CHEMICALS PLOT NO.179/180, 3 RD STAGE, KAIDB, INDUSTRIAL ESTATE BELLARY RESPONDENT (BY SRI J BASAVARAJ, ADV.)
2 : 2 : THIS APPEAL IS FILED U/S 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED: PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC, HOSPET, IN C.C.NO. 1369/2007, AND CONVICT THE RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT. THIS APPEAL COMING ON FOR FURTHER HEARING HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON , THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: JUDGMENT The judgment and order of acquittal dated passed by the Prl.Civil Judge(Jr.Dn.) & JMFC, Hospet in C.C.1369/2007 has been challenged in this appeal. By the said judgment and order, the trial Court acquitted the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act. 2. The brief facts of the case of the appellantcomplainant before the trial Court that accused has
3 : 3 : requested the complainant to advance loan of Rs.10,00,000/- to meet his transport business. The complainant advanced hand loan of Rs.10,00,000/- to the accused and for discharge of legally recoverable debt, the respondent herein had issued the cheque dated for a sum of Rs.10,00,000/- drawn on State Bank of Mysuru, Main Bazar Branch, Ballari, in favour of the complainant. When the said cheque was presented for encashment it was dishonoured with an endorsement payment stopped by the drawer. After dishonour of the cheque, complainant got issued legal notice calling upon the accused to pay the cheque amount and inspite of service of said notice, accused failed to make the payment thereunder within the stipulated time. Hence, the complainant filed the private complaint before the trial Court for the alleged offence under Section 138 of N.I.Act.
4 : 4 : In response of the summons, the respondent/accused appeared in the said case and participated in the proceedings. On the side of the complainant, complainant has been examined as P.W.1 and got marked 10 documents as per Exs.P-1 to P-10 and on the side of the defence, the respondent/accused examined himself as D.W.1 and one witness as D.W.2 and he has produced the documents marked as per Exs.D-1 and D-2. After considering the merits of the case, ultimately, the trial Court acquitted the respondent/accused. Being aggrieved by the said judgment and order, the appellant/complainant is before this Court and he has challenged the legality and correctness of the said judgment of the trial Court on the grounds as contended in paragraph Nos.9 to 20 of the appeal memorandum.
5 : 5 : 3. Heard the arguments of the learned counsel appearing for the appellant/complainant and the learned counsel appearing for the respondent/accused. 4. Learned counsel for the appellant/complainant has submitted that with regard to the accused borrowing a sum of Rs.10,00,000/- and issuing the cheque in favour of the complainant are admitted by the accused during the course of his crossexamination. On the complainant issued the notice by RPAD, which was returned back on , but the notice sent under certificate of posting was served on the respondent-accused. He has also submitted that accused sent the reply notice as per Ex.P-8. Looking to the contents of the reply sent by the respondent-accused, the defence taken in the reply notice and the one taken in the proceedings during the course of trial are totally different.
6 : 6 : He has submitted that though it is the contention of the respondent/accused that notice as per Ex.D-2 was served on the respondent/accused and immediately, thereafter the cause of action arouse for the complainant to file the complaint before the trial Court, and the complaint filed before the trial Court was barred by time and it was not as per the requirement of Sections 138 (b) and 142 of N.I.Act. Learned counsel for the appellant has further submitted that the oral evidence of D.W.1, who is the accused, is very clear that he has not received the notice as per Ex.D-2. Hence, he has submitted that inspite of such admission by the respondent/accused himself, the lower Court wrongly read the evidence and wrongly came to the conclusion that cause of action arouse to the complainant when Ex.D-2 notice was served on the accused. He has submitted that regarding the service of notice Ex.D-2 on the accused there is no acceptable and cogent material placed by the respondent/accused and
7 : 7 : the trial Court also wrongly presumed that it was served on the respondent. Hence, learned counsel has submitted that though the witness D.W.2, the advocate, has been examined on the side of the respondent/accused, but the cross-examination of both D.Ws.1 and 2 clearly shows that Ex.D-2 was not served on the respondent/accused and it also shows a sort of collusion between the accused and D.W.2. Hence, he has submitted that the trial Court wrongly appreciated the entire materials placed on record and wrongly acquitted the respondent/accused. Hence, he has submitted that complainant has proved his case with worth believable material and hence, submitted to allow the appeal and to set-aside the judgment and order of acquittal passed by the trial Court and to convict the respondent/accused for the offence punishable under Section 138 of N.I.Act.
8 : 8 : In support of his contention, learned counsel for the appellant has relied upon the following decisions filed along with the memo dated i. AIR 2001 SC 676 in the case of M/s.Dalmia Cement (Bharat) Ltd., v. M/s.Galaxy Traders and Agencies Ltd. and others. ii (4) Kar.L.J.279 in the case of Gangadhar v. Raghunathasa. iii (5) Kar.L.J.165 in the case of Smt.Dhakshayani v. Smt.Malathi Dayan. iv (1) Kar.L.J.283 in the case of M.S.Srikara Rao v. H.C.Prakash 5. Per contra, learned counsel for the respondent/accused during the course of his arguments has submitted that the complainant has suppressed the material facts in this case. Though the complainant got issued legal notice to the respondent through D.W.2 advocate, at the first instance when the respondent/accused brought to the notice of the Court
9 : 9 : about the issuance of such notices on behalf of the complainant by D.W.2, then only the complainant gave answers about the same. Learned counsel has submitted that though the notices were issued by D.W.2 on behalf of the complainant to the respondent/accused by RPAD and also by UCP (Under Certificate of Posting), the notice sent by RPAD was not served on the accused and it was returned back, but the notice sent through UCP was served on the respondent/accused. Hence, it is submitted that when once the postal cover under Ex.D-1 was sent with correct address, then under Section 27 of the General Clauses Act, 1897, there is a presumption under law that, it is presumed to have been served on the addressee. Learned counsel has submitted that this aspect has been properly appreciated by the trial Court and it considered the evidence both oral and documentary of both sides and came to the conclusion that Ex.D-2- notice was served on the respondent/accused and
10 : 10 : hence, the cause of action for the purpose of limitation arises then and there only. Learned counsel has further submitted that regarding the issuance of such notice to respondent/accused, D.W.2, who has been examined on the side of the accused, has consistently deposed about the issuance of such notice to the respondent/accused. Hence, he has submitted that the trial Court correctly read the evidence and rightly acquitted the accused. Learned counsel has submitted that regarding the alleged collusion between D.Ws.1 and 2 is concerned, the complainant has not placed any cogent and acceptable material before the trial Court. Hence, he submits that trial Court is justified in acquitting the respondent/accused and no illegality has been committed by the trial Court. Hence, submitted to dismiss the appeal. In support of his contentions, learned counsel for the respondent/accused has relied upon the following decisions filed along with the memo dated
11 : 11 : i. (2005) 4 SCC 417 in the case of Prem Chand Vijay Kumar v. Yashpal Singh and another. ii Cri.L.J.4066 in the case of Sadanandan Bhardan v. Mahdavan Sunil Kumar. 6. In reply, learned counsel for the appellant/complainant again submitted that during the course of cross-examination the respondent/accused unequivocally admitted that Ex.D-2 notice was not served on him and even in the reply notice sent to the complainant for the subsequent notice, the accused has not at all mentioned about he received the notice under Ex.D-2. Hence, submitted to allow the appeal as prayed for. 7. I have perused the averments made in the complaint filed before the trial Court, grounds urged in the appeal memorandum, judgment and order of acquittal passed by the trial Court and also the
12 : 12 : exhibited documents and oral evidence of the parties adduced before the trial Court. 8. The main contention of the respondent/accused in the case is that the complainant after dishonour of the cheque, issued the legal notice under Ex.D-2 under certificate of posting in the cover Ex.D-1 and same was served on the respondent/accused and hence, cause of action started then and there only, therefore, the complaint filed by the appellant/complainant is barred by the law of limitation. 9. But it is the contention of the appellant/ complainant that said notice was not at all served on the respondent/accused, even according to the oral evidence of respondent/accused. Hence, the notice issued subsequently i.e., under Ex.P-4, which was sent under certificate of posting was served on the
13 : 13 : respondent/accused, but the notice under RPAD was returned un-served, which was produced as per Ex.P-7 and the respondent/accused sent his reply to the said notice as per Ex.P-8 to the notice sent under Ex.P-4. Hence, it is his contention that the cause of action for filing the private complaint arouse when the reply notice was issued as per Ex.P However, considering the oral evidence of the parties, so also the documentary evidence i.e., Exs.D-1 and D-2 and the evidence of D.W.2, the trial Court held that the complainant has not complied the mandatory provisions of Section 139 and 140 of N.I. Act, hence, the question of considering the other aspects does not arise and the trial Court answered the first point for consideration in the negative and ultimately, dismissed the complaint.
14 : 14 : 11. Perusing the decisions relied upon by the learned counsel for the accused before the trial Court, which are referred by the trial Court in its judgment, the principles enunciated in the said decisions cannot be disputed. But the main question for consideration is regarding the factual aspect as to whether the complainant has placed the materials to prove that Ex.D-2 notice was not served on the respondent/accused and hence, the cause of action arose only when the complainant issued the subsequent notice i.e., as per Ex.P-4, for which reply was sent by the respondent/accused under Ex.P It is an admitted fact that complainant and the accused person were known to each other. Perusing the oral evidence of D.W.1 (respondent/accused), during the course of his cross-examination, on page No.3 of the deposition, he has deposed that he has seen the cheque
15 : 15 : shown to him, he admitted that he himself issued the said cheque, even he has admitted the signature as per Ex.P-1(a) is his signature. He has unequivocally admitted that because of the transaction between himself and the complainant, and admitting that he is liable to the complainant to the tune of Rs.10,00,000/-, he issued the cheque as per Ex.P-1. He has further deposed that there is acquaintance between himself and the complainant from the last 2-3 years and during this period of 2-3 years, he is continuously in contact with the complainant. Himself and the complainant used to meet 2-3 times in a month in connection with the transport business, but he denied that when he was in need of money, he has taken a sum of Rs.10,00,000/- as loan from the complainant. Even he has denied that for the discharge of the said amount of Rs.10,00,000/-, he has issued Ex.P-1 Cheque to the complainant. He has denied the further suggestion that he is deposing falsely that he has given the cheque as security in
16 : 16 : connection with the agreement. On page No.4 of his deposition, he has deposed and admitted as true that the notice sent by the complainant through Sri.Satish, Advocate, was not personally served on him, but the witness volunteered and deposed that complainant informed over phone about the same. He denied the suggestion that complainant has not at all spoken to him over phone about he sending the notice through Satish, Advocate, or about the cheque Ex.P-1. He deposed that he has seen reply notice Ex.P-8, which was according to his information and the contents of the said reply notice are true. It is true that on Ex.D-1 cover, it is mentioned as door lock EzÉ and it is written that same was sent back to the sender of the same and then two lines are drawn and the writings are scored. But witness voluntarily deposed that the said notice was not returned back to the person, who sent it. He again admitted unequivocally as true that Exs.D-1 and D-2, the cover and the notice, respectively, are not served on
17 : 17 : him, but the witness volunteered and deposed that it was in the factory. He has also deposed that before he gave the application to the bank, he has not informed the complainant not to present the cheque for encashment. When it was presented to the bank, there was a sum of Rs.10,00,000/- in his account to show the same he has not produced any documents before the Court. 13. D.W.2 Sri G.Satish S/o Shashidar, Advocate, has deposed in his examination-in-chief that he has seen the cover under Ex.D-1 and it is his office cover, he has seen Ex.D-2 notice, it was issued by him on on behalf of Sri M.R.Achut Kumar i.e., the complainant. The contents of Ex.D-2 are as per the information furnished by his client and he issued Ex.D- 2 notice in connection with Ex.P-1 cheque.
18 : 18 : Generally, in the cheque bounce cases, when statutory notice used to be issued, one will be sent under RPAD and another will sent through UCP. On behalf of the complainant, he sent the notice under RPAD and UCP, after he issued the notice under Ex.D-2, complainant has not at all went to him for filing the case. 14. In his cross-examination, D.W.2 after seeing Ex.D-1, has deposed that after issuing the same, he cannot say that the notice sent by him was unserved and returned back. Similarly, without looking the document, he cannot say that the notice sent under RPAD was unserved to the addressee and it has also returned back. After seeing the document, he will say. When it was suggested that in case, the notice sent under RPAD and UCP were unserved and returned back to the sender they used to be in his custody, the witness answered if at all such documents returned
19 : 19 : back to him, he has given them to his client. He admitted as true that in case, the notice sent under RPAD or by any other mode was not served and returned back to his address, they will be in his custody and they will be continued to be in his custody till his client comes and tell that he wants those documents. When it was specifically suggested by the counsel on behalf of the complainant to this witness that the notice, which said to have been sent by him pertaining to this case were not served to the address of the accused and they were returned back, he has deposed that he does not remember. 15. I have perused the cover Ex.D-1. It is addressed to Sri Sekhar, Prop: Sekhar Transport, C/o. Vijai Naidu Chemicals, Plot No.179/180, III Stage, KAIDB Industrial Estate, BELLARY, and it is from G.Satish, Advocate, 11/679, Bellary Road, Hospet , Phone No and Cell Phone
20 : 20 : No I have also perused Ex.D-2, it is the notice dated , it is on the letter head of said G.Satish, Advocate, Bellary. 16. On Ex.D-1 cover it is mentioned as Door lock EzÉ so returned sender. Then the said words are scored by drawing two lines over the said writing. So far as the evidence of D.W.1 (respondent-accused) is concerned, he has clearly admitted that Ex.D-2 notice was not personally served on him. Even if it is accepted that the notice under Ex.D-2 was sent by Sri G.Satish, Advocate, under the Cover Ex.D-1, on behalf of his client i.e., the complainant to the accused; when it was not served on the respondent/accused, as deposed by him on oath, naturally the cover would have returned back to the said Satish, Advocate, and it ought to be in his custody. Hence, the contention of the appellantcomplainant that the notice was not served on
21 : 21 : respondent-accused also gains support on the basis of the endorsement on the said cover Door lock EzÉ so returned sender. This aspect was not properly appreciated by the trial Court. Even the trial Court observed in his judgment that even though respondent/accused admitted in his oral evidence that it was not served on him that itself will not be sufficient to disbelieve the contention of the respondent/accused. This observation of the trial Court is not correct. Even the trial Court has not appreciated as to how the respondent/accused came into the custody of the said cover when it was admittedly not served on him and if the evidence of D.W.2, the advocate, is taken into consideration, he has deposed that if the notice was returned back to the sender, it will be either in his custody or he will give it to his client i.e., complainant. In view of this evidence of D.W.2 also, the custody of cover under Ex.D-1 along with the notice Ex.D-2 with the respondent/accused cannot be accepted.
22 : 22 : So far as the endorsement on the cover that Door lock EzÉ So returned sender, the parties ought to have examined the postal authorities before the trial Court to clarify the controversy between the parties, which was not done in the case. 17. Looking to the judgment of the trial Court, the trial Court has discussed only about the issuance of the notice and its service on the respondent/accused referring to Exs.D-1 and D-2 and observed that since the notice under Ex.D-2 was served on the respondent/accused, the complainant has not complied with mandatory requirements of Sections 138 and 142 of the N.I.Act, hence, the question of considering the other aspects of the matter does not arise. So it clearly shows that the trial Court has not touched the other aspects because it held that Ex.D-2 notice was served on the respondent/accused.
23 : 23 : 18. Looking to the judgment of the trial Court at paragraph 8 r, at page No.12, it is observed by the trial Court that advocate for complainant has vehemently argued, and relied the ruling of Honorable High Court of Karnataka reported in 2008 (4) Kar.L.J 279 wherein, the Honorable High Court of Karnataka held the dictum in Gangadhar V/s.Raghunathasa, and the trial Court extracted the said dictum in its judgment on page And on page No.13 at sub para s. it is observed by the trial Court that in the above said decision Honorable High Court of Karnataka held Cause of action for filing complaint does not commence merely on issuance of notice under clause (b) to proviso to Section 138 of N.I.Act. It commences from date of service of such notice on drawer of cheque. The trial Court also mentioned in paragraph u that no doubt in the said decision reported in 2008 (4) Kar.L.J 279, Honorable High Court of Karnataka, discussed the ruling of Honorable Supreme Court of India reported in
24 : 24 : 1998 Crl.L.J But the trial Court again held that the said decision will not come to the aid of the complainant, because the accused established that Ex.D-2 sent by the complainant was served on him. 19. Let me refer to the oral evidence of the complainant P.W.1 also, who filed his affidavit in lieu of examination-in-chief, wherein he reiterated the contents of the complaint filed under Section 200 of Cr.P.C and he was further examined and got marked the documents Exs.P-1 to P-10. He denied the suggestion in the cross-examination that on there was a contract in between himself and the accused according to which 860 metric ton of iron ore was agreed to be transferred from the mines plot Shiraguppa to Krishnapatanam port, Andhra Pradesh by the accused. He also denied the suggestion that as a security for the said transport business, the accused gave the said cheque to him. He admitted as true that
25 : 25 : he filed the case against one Satish Pritam in the Addl.Civil Judge (Jr.Dn.) for the cheque amount of Rs.1,25,000/-. He has further admitted that in the said case on his behalf Sri.G Satish, Advocate, was conducing the said case. He admitted that once he presented the said cheque on at Indian Bank, Hospet Branch for encashment, but it was returned back with an endorsement that Insufficient Funds. But he denied the suggestion that after dishonour of the said cheque on , he got issued the notice to the accused through Sri G.Satish, Advocate. He has further denied the suggestion that the notice dated , which was sent through UCP was served on the accused and the notice sent through RPAD was returned back as the door was locked. Then the cover was shown to him in the open Court and he denied the suggestion that the said cover was sent through his advocate informing about the bouncing of the cheque. He has also denied the suggestion that
26 : 26 : after sending the cover, he also informed the accused over phone that he has sent the notice and asked him that after receipt of the said notice to make the payment of the said cheque. He denied the further suggestion that accused has not at all borrowed any loan from him and the cheque, which was given as a security, has been misused by him. 20. Therefore, looking to this oral evidence of the complainant, nowhere he has admitted that after bouncing of the cheque on , he got issued the earlier notice on through G.Satish, Advocate, who has been examined as D.W.2 in this case. Therefore, looking to the entire oral evidence of P.W.1 complainant, nowhere it has been established with cogent and satisfactory material that complainant sent notice as per Ex.D-2 with the cover Ex.D-1 and same was served on the respondent-accused.
27 : 27 : 21. Even looking to the suggestion made during the course of cross-examination of P.W.1 that the complainant got issued earlier notice on by RPAD so also by UCP and the notice sent under RPAD returned with an endorsement Door lock EzÉ so returned sender, which probablises the contentions of the complainant that no such notice was served on the respondent-accused. This is why because even on the cover Ex.D-1 also there is an endorsement, which clearly shows that notice under Ex.D-2 was not served on the respondent-accused. 22. Looking to the decisions relied upon by the learned counsel for the appellant filed along with memo dated The decision reported in AIR 2001 SC 676, wherein, Their Lordships have laid down the proposition as under: (A) Negotiable Instruments Act (26 of 1881), S.1 Interpretation Act to be
28 : 28 : interpreted in light of objectives to be achieved Efforts to defeat objectives of law to be discouraged. (B) Negotiable Instruments Act 926 of 1881), Ss.138, 142 Dishonour of cheque Limitation Cause of action Arises from date of receipt of notice demanding payment First notice demanding payment issued by payee Postal acknowledgment of notice received Contents of envelope however disclaimed to be received by drawer Payee thereupon representing cheque and on dishonour issuing second notice for payment Complaint filed within one month of date of second notice Not barred by limitation. 23. I have also perused the decision relied upon by the learned counsel for the respondent-accused produced along with the memo of citations dated The decision reported in 2005(4) SCC
29 : 29 : 417, wherein Their Lordships have laid down the proposition as under: A. Negotiable Instruments Act, 1881 Ss.138 & 142(b) Dishonour of cheque Cause of action to file complaint on non-payment despite issue of the notice, held, arises but once Another cause of action would not arise on repeated dishonour on presentation of same cheque again subsequent to nonpayment after the first notice Payee is free to present the cheque repeatedly within its validity period but once notice has been issued and payment not received within 15 days of the receipt of the notice, payee has to avail the very cause of action arising thereupon and file the complaint Dishonour of cheque on each presentation gives a fresh right to present it again during the period of its validity, but, held, it does not give ries to a fresh cause of action Complaint has to be filed within one month from the day immediately following the day on
30 : 30 : which the period of 15 days from the date of receipt of the first notice by the drawer expires Criminal Procedure Code, 1973, S.482. B. Words and Phrases Cause of action Meaning of Civil Procedure Code, 1908, S.20 Criminal Procedure Code, 1973, S.177. C. Negotiable Instruments Act, 1881 S.138 Prosecution for offence under Facts required to be proved Restated. I have also perused the another decision relied upon by the learned counsel for the respondent-accused reported in 1998 Cri.L.J.4066, wherein the Hon ble Apex Court has laid down following principle: Negotiable Instruments Act (26 of 1881), Ss.138, 142 Dishonour of cheque Complaint Cause of action Arises and can arise only once Payee can present cheque any number of times during the period of its validity On each presentation and its dishonour a fresh
31 : 31 : right, and not cause of action, accrues in his favour. The principles enunciated in the decisions relied upon by the learned counsel for the respondent-accused shows that cause of action arises only once when the statutory notice was issued by the complainant to the accused and when it was served on him. 24. But here, the question is whether Ex.D-2 notice sent under UCP under Ex.D-1 cover was really served on the respondent-accused, about which, I have made a detailed discussion with reference to the oral evidence of the parities so also the documents. 25. Perusing the entire materials placed on record, I am of the clear opinion that there is no worth believable material placed by the respondent-accused to show that notice under Ex.D-2 was really served on
32 : 32 : him. Hence, the complaint filed by the appellantcomplainant is not barred by the law of limitation. 26. Looking to the oral as well as documentary evidence and the principles enunciated in the decisions relied upon by both sides, I am of the opinion that the trial Court wrongly read the evidence and also the position of law placed before it and wrongly held that Ex.D-2 notice sent with the cover under Ex.D-1 was served on the respondent-accused and hence, held that complaint filed is barred by law of limitation. The materials clearly shows that in reality, Ex.D-2 notice was not served on the respondent-accused. Hence, the judgment and order of acquittal passed by the trial Court is illegal and not sustainable in law. 27. Perusing the judgment and order of acquittal passed by the trial Court, the trial Court itself has mentioned in its judgment that it considered the
33 : 33 : limitation aspect referring to Ex.D-2 and came to the conclusion that the complaint filed by the appellantcomplainant herein is barred by time and it is specifically observed by the trial Court that as the complaint was barred by time and not maintainable, the question of considering other merits of the case will not arise. Therefore, this clearly shows that the other merits of the case were not touched by the trial Court. Under such circumstances, it is necessary for this Court to remand the matter to the trial Court to consider the matter afresh and to dispose of the same in accordance with law giving opportunity to both the sides to lead their further evidence, if any, so also to produce the documents, if any. Hence, appeal is allowed and the judgment and order of acquittal dated passed by the Prl.Civil Judge (Jr.Dn.) & JMFC, Hospet, in C.C.1369/2007 is hereby set-aside and the matter is remanded back to the trial Court for fresh disposal in accordance with law.
34 : 34 : However, it is made clear that the observations made in the body of this judgment are only for the purpose of disposal of this appeal and the trial Court should not be influenced by the said observations while considering the merits of the case and deciding the same. BSR Sd/- JUDGE