1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 13 TH DAY OF AUGUST, 2014 BEFORE THE HON’BLE MR.JUSTICE C R KUMARASWAMY CRIMINAL APPEAL NO.14 OF 2010 BETWEEN: M/S CAR QUEEN NO.39, SWASTHI ROAD 2 ND CROSS, SHANTHINAGAR BANGALORE-560027 REPRESENTED BY ITS PROPRIETOR MR.RITESH RIDHKARAN CHORARIA …APPELLANT (BY SRI.A.S.GUPTA, ADVOCATE) AND: MR.M.MANJUNATH S/O M.MUNIYAPPA R/O NO.116, 2EC 2 ND CROSS, NEAR ST.VINCENT POLLOTI CHURCH OMBR LAYOUT BANASWADI MAIN ROAD BANGALORE-560043 ... RESPONDENT (BY SRIYUTHS.SRINIVASA AND RAGHAVENDRA.S - ADVOCATES)
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 13TH DAY OF AUGUST, 2014
BEFORE
THE HON’BLE MR.JUSTICE C R KUMARASWAMY
CRIMINAL APPEAL NO.14 OF 2010
BETWEEN:
M/S CAR QUEEN NO.39, SWASTHI ROAD 2ND CROSS, SHANTHINAGAR BANGALORE-560027 REPRESENTED BY ITS PROPRIETOR MR.RITESH RIDHKARAN CHORARIA …APPELLANT (BY SRI.A.S.GUPTA, ADVOCATE) AND:
MR.M.MANJUNATH S/O M.MUNIYAPPA R/O NO.116, 2EC 2ND CROSS, NEAR ST.VINCENT POLLOTI CHURCH OMBR LAYOUT BANASWADI MAIN ROAD BANGALORE-560043 ... RESPONDENT (BY SRIYUTHS.SRINIVASA AND RAGHAVENDRA.S -ADVOCATES)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE
COMMON JUDGMENT OF ACQUITTAL PASSED BY THE ADDITIONAL SESSIONS JUDGE AND PRESIDING OFFICER, FAST TRACK COURT-III, MAYO HALL UNIT, BANGALORE IN CRL.A.NO.25034/2008 AND TO RESTORE THE ORDER OF THE XXV ACMM, BANGALORE CITY IN C.C.NO.10325/2005 DATED:29.03.2008.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This criminal appeal is filed under Section
378(4) of Cr.P.C by the advocate for the appellant
praying that this Hon’ble Court may be pleased to set
aside the common judgment of acquittal passed by
the Additional Sessions Judge and Presiding Officer,
Fast Track Court-III, Mayo Hall Unit, Bangalore in
Crl.A.No.25034/2008 and to restore the order of the
XXV ACMM, Bangalore City in C.C.No.10325/2005
dated:29.03.2008.
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2. I have heard the learned counsel for the
appellant as well as learned counsel for the
respondent. Records were also called for and I have
perused the same.
3. The averments made in the complaint is
as under:
The complainant is a businessman. He is
dealing with the automobile accessories. Accused is
also a businessman. He has purchased goods from
the complainant on credit basis. To discharge the
loan liability in part, the accused issued a cheque
bearing No.049940 dated 28.07.2004 for a sum of
Rs.5,00,000/- drawn on Indian Overseas Bank,
HRBR Layout Brach, No.3, IX-B Main Road,
Banasawadi Main Road, Bangalore, in favour the of
the complainant. The said cheque was presented by
the complainant to his bank for collection on
25.11.2004. The same was returned by the accused’s
banker with a shara “Insufficient Funds”.
4
A legal notice dated 29.11.2004 was issued to
accused demanding the amount mentioned in the
dishonored cheque i.e., Rs.5,00,000/-.
The legal notice was sent to the accused to two
addresses. The accused acknowledged the registered
notice of one address. The other notice returned as
“not claimed”.
The accused did not send reply to the notice. He
has not complied with the demand for payment of a
sum of Rs.5,00,000/-. The accused is liable to pay a
sum of Rs.5,00,000/-. The consideration amount was
Rs.5,08,008/- and to discharge his liability in part,
the accused issued a cheque for Rs.5,00,000/-. The
accused is liable to pay interest at 24% per annum
with quarterly rest as agreed by him.
The accused sent Notice on 29.11.2004. As per
acknowledgement, the accused has received the
notice on 03.12.2004. Therefore, the cause of action
arose firstly on 25.11.2004 when the cheque was
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presented, secondly on 29.11.2004 when the legal
notice was sent, thirdly on 03.12.2004 when the
accused received the legal notice and the same was
subsisting.
The complaint filed is in time. The entire
transaction is carried out at No.39, Swasthi Road, 2nd
Cross, Shanthinagar, Bangalore-560027. The
accused has committed an offence under Section 138
of Negotiable Instruments Act.
4. In the trial Court, sworn statement of the
complainant was recorded. The accused pleaded
guilty and claimed to be tried.
5. In the trial Court, PW1 was examined on
behalf of the complainant and Exs.P1 to P6A were got
marked. DW1 was examined and no documents were
marked on behalf of the accused.
Evidence of PW.1 is filed by way of affidavit.
His evidence is in the same line as that of the
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complaint. During his cross-examination, he states
that he knew the accused. The accused was
introduced through one Syed, Sales Executive of
Manipal Motors. One Diwakar - driver, accused and
another person whose name is not known to him had
approached him. Accessories were fixed to three cars
– Cilo, TATA Safari and Honda City brought by the
accused. He has not given any quotation before
fixing the accessories. They were affording the credit
facility to known people. Credit facility was extended
by receiving post-dated cheques. Accused alone was
present and issued the cheque. He has mentioned
the value of the goods in the complaint, but not in the
notice. He has not mentioned the vehicle number in
the invoice. He has sent the legal notice to two
addresses of the accused. He has produced the
postal receipts. He has not sent the legal notice
under certificate of posting. He has produced the
postal acknowledgement for having duly served the
7
notice on the accused. He admits that the address of
the accused is different in the complaint to that of the
notice. He admits that he has received Rs.1,20,000/-
before the court from the accused. He denies the
suggestion that accused is liable to pay only
Rs.30,000/-. There is no impediment for him to
produce the monthly and annual statement together
with the valuation statement and Form-3. The
amount mentioned in EX.P3 is not the amount under
the cheque. He volunteers that the discount was
extended to the accused. He admits that the address
mentioned in EX.P3 is not the address shown in the
cause title of the complaint. He volunteers to depose
that the residential address is described in the
complaint as the office of the accused was closed
from the date of issuance of cheque. Every week,
they were approaching the accused for collection. He
approached the accused at his home and demanded
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to pay the dues, after one or two weeks’ of issuance of
cheque.
The accused has filed his evidence by way of
affidavit and states that he do not know the
complainant. There is no transaction of whatsoever
nature taken place between him and the
complainant. He came to know about the
complainant only when he received summons
through police at his residence and on enquiry, he
came to know that one Mr.Diwakar had given a blank
cheque belonging to him during the month of March
2003 to the complainant to secure a sum of
Rs.1,50,000/- towards purchase of car security
system, music system and its accessories etc. from
the complainant’s company. Diwakar also intimated
him that during May 2003 that he has paid
Rs.50,000/- in cash to the complainant and the
complainant promised to return the cheque which
was issued by way of security on payment of the
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balance amount. Diwakar further intimated him that
subsequent to purchase of items from the
complainant, he came to know that they were of
inferior quality and in that regard, he had a clash
with the complainant. The complainant has agreed
to receive a sum of Rs.1,50,000/- as full and final
settlement in addition to the said Rs.50,000/- paid
by Diwakar. He further deposed that though the said
Diwakar paid a sum of Rs.1,20,000/- to the
complainant during the pendency of the above case,
and the complainant had assured to withdraw the
case, but however, the complainant after receipt of
Rs.1,20,000/- instead of returning the cheque, to his
utter shock, started demanding more money for the
best reasons known to him. He refused to pay the
same to the complainant. He further states that
there is no transaction as alleged by the complainant.
The complainant has not approached the Court with
clean hands. He has created invoice for the purpose
10
of this case. He has never delegated any authority to
sign on his behalf to anybody and he has never
authorized the said Diwakar to sign any of such
original invoice produced and relied upon by the
complainant. As per his knowledge the signature on
the invoice does not belong to Diwakar and it is
created by the complainant. He further states that he
do not have any office at the address mentioned by
the complainant in the legal notice. The address
mentioned in the invoice also does not belong to him.
His office address is No.9, Sri Lakshmi
Venkateshwara Complex, Banasawadi Outer Ring
Road, Bangalore – 40. He states that the
complainant did not issue any notice to his
residential address nor to his office address. Hence
the notice issued by the complainant is not legal and
has deprived him of an opportunity to reply.
He further states that the complainant with
dishonest intention and to cause wrongful loss to
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him, has chosen to misuse the blank cheque issued
towards security by filling up the contents of the
cheque. There is no authority or permission that is
being obtained either directly or indirectly by the
complainant before filling the contents of the blank
cheque from him. He has not executed the subject
cheque towards any transaction. This witness was
cross examined by the complainant’s counsel. He
states that in the year 2003, he has given a blank
cheque to Diwakar for security purpose. EX.P1 does
not disclose the name of Diwakar. Diwakar told that
some accessories were purchased. As he had no
account, DW.1 had given the cheque in his favour.
He has not given any reply to the notice as he has not
received any notice. He denies the suggestion put to
him that notice was served to the address shown in
EX.P5. The address described in EX.P5 is not correct.
But his residential address is No.116, 2 EC, 2nd
cross, Near St. Vincent Polloti Church, (1) MBR
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Layout, Banasavadi Main Road, Bangalore. He was
working as a field worker. He does not know whether
Diwakar owns a car or not. He made payment before
court. As per the order of this Court and vide letter
dated 21.03.2013, examination-in-chief of Manjunath
was recorded. He has deposed that he has no
relation with this case. Brother of Diwakar has taken
spare parts worth Rs.1,50,000/-. Diwakar has paid
Rs.50,000/- through cash and he did not have a
bank account. For the purpose of security, the
complainant gave cheque. EX.P1 is the cheque. He
admits his signature on the cheque. But the writing
made on the cheque is not his hand writing. There is
variation in the writing and even the ink differs. After
receiving the summons he enquired Diwakar. He told
him that Rs.1,50,000/- worth goods were purchased;
Rs.50,000/- was paid by way of cash. The complaint
was registered for recovery of Rs.5,00,000/-.
Complainant and Diwakar deliberated for settlement.
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Complainant agreed for receiving Rs.2,00,000/-.
Already Rs.50,000/- was paid. D.W.1 has received
Rs.1,30,000/- from Diwakar and the same amount
was deposited in the court. Rest of the amount was
not received by the complainant as the cheque
amount was Rs.5,00,000/-. He has parted the
cheque to Diwakar in the year 2003. EX.P3 is
invoice. In this invoice, his signature is not there. He
does not know as to who has signed the invoice.
EX.P3 - invoice is original one. Complainant has
created this document by mentioning his office
address, vehicle number, KST – CST number, post
dated cheque number and date. On noticing this, he
stated that the invoice was created for the purpose of
this case. The address mentioned in EX.P5 is not his
address. His correct address is No.9, Sri
Lakshmivenkateshwara Complex, Old Madras Ring
Road, Bangalore – 43. Ex.P5 was not sent to his
residence address. He does not know Syed. He states
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that Diwakar is a physically handicapped person.
During his cross examination he states that he has
failed in S.S.L.C. examination. His father was a
Police Sub Inspector. For the past one year, he is
working in Wipro Diagnosis Company as a Manager.
Earlier to that, he was a real estate agent. He had
employed three persons for his work, namely Raghu,
Seenu and Diwakar. Raghu was maintaining the
office, Seenu was working as receptionist and
Diwakar was working as Field Assistant. He was
paying salary of Rs.3,500/- to Diwakar, Rs.2,000/- to
Seenu and Rs.1,500/- to Raghu. He used to receive
brokerage commission for sale of the immovable
properties. For the past two years, Diwakar was
working with him. Diwakar approached him directly
seeking for employment. Accordingly, he appointed
him. He denies the suggestion put to him that
Diwakar purchased car security system, music
system and other spare parts. By way of security, the
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cheque in question was given. After giving the
cheque, Diwakar told him that he has given a blank
cheque. He denies the suggestion put to him that
blank cheque was given to Diwakar. The signed
blank cheque was kept in the office for the use of
financial transaction and the said cheque was
misused. He has signed the blank cheque for the
purpose of paying electrical bill, phone bill, etc.,
Diwakar has admitted that he has parted the cheque
and he also told him that he will make settlement for
a sum of Rs.2,00,000/- and by that time, Diwakar
had left the job. He has not initiated any legal action
against Diwakar for recovery of Rs.5,00,000/-. He
denies the suggestion put him that all these
transactions took place in the year 2004. EX.P.6(a)
is notice. In that notice address mentioned is not his
address. He has no enmity with the Postman. The
address mentioned in Ex.P5 i.e. No.116 is his
address. The name Manjunath mentioned in Ex.P7 is
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his name. Ex.P1 - cheque is dated 29.07.2004. He
has not registered his real estate business. He has
PAN number. He has not mentioned the loss in his
income tax returns.
DW.2 is the field supervisor working under the
accused. He is not a driver. He is a handicapped
person. He knew the plaintiffs’ company. His
brother owns a Maruthi Van. He frequently visited
the complainant’s firm for installing some of the
accessories to Maruthi Van and purchased
accessories worth Rs.1,50,000/- in the year 2003.
Out of the total amount, he has paid cash of
Rs.50,000/- and assured to pay the remaining dues
of Rs.1,00,000/- in part payments. At that time,
PW.1 has requested to draw cheque in his favour.
DW.2 was not holding any account. Ex.P.1-cheque
was blank when it was issued by the accused to him.
He does not know, who has written the contents of
EX.P1. Thereafter, he found some defects in the
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accessories. He has returned the accessories to PW.1
and at that time, he requested to return the said
cheque and the same was not returned. He was told
by PW.1 that it was torn. He has not attested the
signature on Ex.P3 - invoice. Thereafter, he came to
know that a case was lodged against accused. On his
approach, the matter was conciliated and it was
settled for Rs.2,00,000/-. Out of which, he had
already made payment of Rs.50,000/- and he agreed
to pay the remaining balance of Rs.1,50,000/-. Out
of it, he has paid Rs.1,20,000/- to the accused and
he has to pay Rs.30,000/-. It was assured that the
complaint filed against the accused will be
withdrawn, but the complainant has not done so.
During his cross-examination, he states that he
has worked under the accused for one year. His
salary was Rs.3,500/-. He admits that the
accessories were installed to his brother’s car. Only
out of friendship, the accused stood as surety. His
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brother is no way connected to PW.1. There are no
documents to show the installation of accessories to
the Maruthi Van.
6. The finding of the trial Court is as under:
“Upon oral statement of PW1, the
complainant has produced Ex.P1 and Ex.P3.
The accused admits that Ex.P1 belongs to
his account and Ex.P1(a) is his signature. He
tried to rebut the case of the complainant
contending that the amount mentioned in
the cheque is not the amount mentioned in
Ex.P3-Invoice and the address is also
incomplete. It is elicited from the mouth of
PW1 that discount was extended to the
accused. Further he also admits that
extension of discount was not mentioned in
Ex.P3. In the affidavit, it was stated that the
cheque was given towards part payment of
the accessories purchased by Diwakar.
There is a contradictory statement. He
contends that he has not executed the
cheque for the amount as mentioned in
Ex.P1. During the pendency of the
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proceedings, a memo was filed by the
complainant on 04.04.2007 stating that the
accused has undertaken to pay a total sum
of Rs.5,00,000/- in installments of
Rs.50,000/- each and it was accepted by the
complainant. The complainant has also
received a sum of Rs.50,000/- on
04.04.2007, Rs.20,000/- on 14.06.2007,
Rs.30,000/- on 16.07.2007 and Rs.20,000/-
on 22.08.2007. In all, the complainant has
received a sum of Rs.1,20,000/- from the
accused and it was duly acknowledged by
the complainant as per the order sheet.
When both the parties were supposed to file
joint memo, the accused has contested the
case and examination-in-chief of the
complainant was completed before filing the
memo on 26.03.2007. For the reasons best
known to the parties, the matter was
contested. Filing of the memo by the
complainant is not in dispute. But he only
contends that the matter was conciliated
between the complainant and employee of
the accused by name Diwakar. On behalf of
Diwakar-DW2, he has made part payment of
Rs.1,20,000/- towards final settlement of
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Rs.1,50,000/-. Hence, Diwakar is liable to
pay a sum of Rs.30,000/-. When conciliation
transpired between them, nothing prevented
them to file an affidavit to that effect during
the course of proceedings. But no steps have
been taken by the accused. Thus, the order
sheet so also memo of the parties holds good
to draw an inference that there was a legally
enforceable debt as it is evident that he has
purchased the accessories to his car on
credit basis as per Ex.P3 and he has issued
a cheque as per Ex.P1 for discharge of his
liability.
The learned Magistrate at para-21 of the
judgment has observed that the accused
cannot say that he has not entered into any
such terms of compromise with the
complainant. He is totally estopped from
taking any other defence. In the eye of law,
as contemplated under Sections 17 to 20 of
Indian Evidence Act, admission is a
statement, oral or documentary which
suggests any inference as to any fact in issue
or relevant fact which is made by any of the
persons. Under the circumstances, it
21
amounts to an admission. The principle is
based on law of estoppel that one cannot be
allowed to play hot and cold simultaneously.
In view of this clear admission, on record, as
per the order sheet, it is evident that the
accused has issued cheque as per Ex.P1
towards discharge of liability. It appears, for
the defence sake, he has taken some fishy
defence.
The learned Magistrate at para-23 of the
judgment has observed that it is argued by
the accused that Ex.P1 is materially altered
as the writings are in different ink. There is a
clear admission of his liability. He cannot go
back to say that Ex.P1 is materially altered.
It is his specific case that he has issued
blank cheque to Diwakar as Security. The
blank and post-dated cheque substantiate
the fact to draw a presumption as
contemplated under Section 139 of the
Negotiable Instruments Act.
The learned Magistrate at para-25 of the
judgment has observed that upon oral
evidence of PW1, he has produced the legal
22
notice said to have been issued to the
accused on 29.11.2004 as per Ex.P5. The
said notice was sent by RPAD to two
addresses of the accused. The accused
acknowledged the registered notice at one
address and other one was returned as ‘not
claimed’ as per shara in Ex.P6. The learned
counsel for the accused has argued that the
complainant has not produced any proof to
prove that the accused has acknowledged
the registered notice sent to the address
mentioned in the original notice marked as
Ex.P6(a). The address of the complaint is
different to that of address mentioned in
notice. It is also admitted by him that he has
given instructions to his advocate. Thus, the
accused contends that the complainant has
not examined the Postman as a witness.
The learned Magistrate at para-26 of the
judgment has observed that no doubt, it is
clear that the address that has been
mentioned in the complaint is not the
address that has been shown in Exs.P5 and
P6(a). There is no specific rule that whatever
the address that has been found in the
23
notice must tally with the address in the
complaint. Thus, the address not tallying
with the notice does not vitiate issuance and
service of notice on the accused for the
reason that it is not the case of the accused
that the address mentioned in Exs.P5 and
P6 are not his office address. Further he has
also not disputed the shara on Ex.P6 “not
claimed”.
The learned Magistrate at para-27 of the
judgment has observed that it is not proved
beyond reasonable doubt that there is
malafide on the part of PW1 in sending the
notice to the wrong address. Admittedly, the
accused is residing in the address mentioned
in the notice. It is clear that the notice is
properly addressed, prepaid and duly sent
through acknowledgment due.
The learned Magistrate at para-28 of the
judgment has observed that no doubt,
Ex.P6(a) does not bear the address which is
shown in Ex.P6. It is argued by the learned
counsel that he has produced the postal
receipt under Ex.P4 to show that he has sent
24
the notice even to that address,
apprehending that he may not be available
in the address that has been mentioned in
Ex.P6. The very production of Ex.P4 shows
that there are no malafide on the part of
PW1, but out of due diligence, he has sent
the notice to both the addresses as
mentioned in Ex.P5. In view of production of
Ex.P4, the conduct of the complainant
cannot be doubted. Further, there is no
question of concocting Ex.P5 or Ex.P6 as he
is only complying with the mandatory
requirement of the law.
The learned Magistrate at para-29 of the
judgment has observed that the last and
foremost ingredient that is required to be
proved is that the accused must show
sufficient cause for non-payment of amount
shown under Ex.P1 in discharging his
liability within 15 days from the date of
service of notice. The shara at Ex.P5 clinches
the issue of service of demand notice. But for
the reasons best known to the accused, he
has not paid the amount well within the time
nor shown sufficient cause for non-payment
25
of amount as stipulated in the notice and
nothing prevented him to receive the notice
and to give a proper reply. The very conduct
of the accused shows that he avoided receipt
of notice sent by the complainant. Thus, he
deliberately avoided due service of notice.
No doubt, there was a memo filed by the
complainant stating that there was an
undertaking by the accused. He has noted
the same in the order sheet and drawn an
inference that Ex.P1 was issued by the
accused towards discharge of his liability.
The trial Court on perusal of oral and
documentary evidence held that it is amply
proved with all probabilities that the
complainant has proved all the components
of Section 138 of N.I. Act. The trial Court at
para-35 of the judgment has observed that
during the pendency of these proceedings,
the complainant has reported receipt of
Rs.1,20,000/- from the accused and that
amount has to be deducted in the total
cheque amount of Rs.5,00,000/-. After
deducting the said amount i.e.,
26
Rs.1,20,000/-, the accused is liable to pay a
sum of Rs.3,80,000/- to the complainant
towards discharge of his liability.
Acting under Section 255(2) of Cr.P.C, the
accused was convicted for the offence
punishable under Section 138 of N.I. Act and
he was sentenced to pay a fine of
Rs.3,80,000/- after deducting Rs.1,20,000/-
in the total cheque amount of Rs.5,00,000/-
and in default, to undergo simple
imprisonment for six months.
7. Feeling aggrieved by the same, the
accused has preferred Criminal Appeal
No.25034/2008. Criminal Revision Petition
No.25053/2008 was preferred by the complainant
seeking to impose fine amount equal to double the
amount of the cheque.
8. Finding of the lower appellate Court is as
under:
27
Lower appellate Court raised two points as
under:
a) Whether the appellant in Criminal Appeal
No.25034/2008 has made out sufficient
grounds to set-aside the impugned order
passed by the lower Court?
b) Whether the petitioner in Crl.RP.
No.25053/2008 has made out sufficient
grounds to impose fine equal to double the
amount of the cheque?
c) What order?
Lower appellate Court answered the above
points as under:
a) In the affirmative
b) In the negative
c) As per final order
Lower appellate Court at para-10 of its
judgment has observed as under:
The complainant has contended in his
complaint that he has issued two notices to
the accused. One notice was served on the
28
accused personally and the same was
acknowledged by the accused and the other
was returned as not claimed. But, at the time
of trial, the complainant did not produce the
postal acknowledgment which was served on
the accused personally as stated in the
complaint. PW1 has deposed that he has
issued two legal notices with regard to
bouncing of the cheque which is marked at
Ex.P1 to the accused to two different
addresses. One notice was sent to his
residential address and other was sent to his
work place. The complainant produced the
unserved returned postal cover at Ex.P6
wherein the address of the accused is
mentioned as Balaji Groups Outdoor
Advertising (P) Ltd., No.13, 9th Main Road,
Kalyana Nagar, Banasavadi Main Road,
Bangalore-43. The accused has specifically
denied by stating that he was not working in
this address at any point of time and it is not
his official address. The accused as DW1 has
also deposed that the address described in
Ex.P5 i.e. the copy of legal notice which was
sent through Ex.P6 postal cover is not his
correct address. He is permanently residing at
29
No.115, 2FC, 2nd Cross, Near St. Vincent
Polloti Church, OMBR Layout, Banasavadi
Main Road, Bangalore. Ex.P5 is the legal
notice which was sent to the accused notifying
the dishonour of the cheque issued by him. No
doubt, Ex.P5-copy of the legal notice is issued
in respect of dishonour of cheque bearing
No.049940, dated 29.07.2004, but the same
was sent to the address No.13, 9th Main Road,
Kalyana Nagar, Banasawadi Main Road,
Bangalore and not to the address mentioned in
the cause title of the complaint. Even the
Complainant has admitted that the address
mentioned in Ex.P5 is different from that of
the address mentioned in the complaint. So, it
is very much clear from the documents
produced by the complainant that notice was
sent to the address as mentioned in Ex.P5
while the complaint was filed against the
accused showing some other address. When
the accused has specifically denied and
contended that he was not running any
business in the address to which the
complainant issued the said demand notice, it
is sufficient on his part to rebut the service of
notice, because, Ex.P6 postal cover was
30
unserved against the accused and it was
returned with a shara ‘not claimed’. So, there
is a rebuttable presumption with regard to
service of notice on the accused. When the
accused has rebutted before the Court that the
address mentioned in the postal cover was not
his correct address, the burden shifts on the
complainant to prove that the accused was
residing or staying in the same address to
which he had sent the legal notice. Admittedly,
the complainant has produced no document to
show that the accused was running a business
under the name and style “Balaji Groups
Outdoor Advertising (P) Ltd.” at the address
mentioned in the legal notice.
PW1 has deposed before the Court by filing
an affidavit that he had sent legal notice to two
addresses of the accused. During the time of
cross-examination, he has deposed that he
had produced the postal receipts for having
sent two registered notices. But, in fact, he has
produced only one postal receipt for having
sent one registered notice to the accused. He
has also admitted that he did not send the
legal notice under COP. On the other hand, he
31
has deposed that he had produced the postal
acknowledgment for having duly served the
notice on the accused. But, such postal
acknowledgment is not produced before the
Court.
In the lower appellate Court, the contention
of the learned counsel for the complainant is
that Ex.P5-legal notice shows both the
addresses of the accused i.e. his working place
as well as his residential address. On perusal
of Ex.P5 issued to the accused where he was
alleged to have been running his business, his
residential address is mentioned in the bottom
of the registered notice. But no such postal
covers, receipts, acknowledgments were
produced before the Court to show that this
notice was sent to the residential address of
the accused.
In the lower appellate Court, the contention
of the accused is that the residential address
is subsequently inserted in Ex.P5 only to
overcome the difficulties of non-issuing any
notice to the accused. In order to substantiate
his contention, he has relied on the original
32
notice which was sent under Ex.P6. It is seen
that the unserved registered cover Ex.P6 was
opened before the Court and the notice kept
inside is marked at Ex.P6(a). On perusal of
Ex.P6(a) which is the original of Ex.P5, which
was issued by the complainant to the accused,
it do not disclose the residential address of the
accused as mentioned in Ex.P5. So, the claim
of the accused that the residential address of
the accused has been subsequently inserted in
the office copy of the legal notice which is
marked at Ex.P5 is believable. The
complainant did not give any explanation as to
why he did not mention the residential address
of the accused in Ex.P6(a). So, the claim of the
complainant that he has issued two notices to
the accused, one to his work place and the
other to his residential address cannot be
accepted.
The trial Court has presumed certain
things in favour of the complainant that he
has mentioned the residential address of the
accused in Ex.P4 and as such the complainant
also issued notices to both the addresses and
33
as such came to a conclusion that there was
valid service of notice.
The Lower appellate Court at para-11 of its
judgment has observed that the claim of the
complainant is that the accused was running
his business in the given address as noted in
Ex.P5 and Ex.P6(a). PW1 had admitted that he
has filed the complaint against the accused by
showing his residential address and not his
work place. The explanation given by the
complainant in this regard is very vital to
decide about proper service of notice. The
complainant admitted that the address
mentioned in Ex.P3 is not the address shown
in the cause title of the complaint. He
voluntarily deposed that the residential
address is shown in the complaint, as the
office of the accused was closed from the date
of issuance of the cheque. According to his
own statement before the Court, that too given
voluntarily, disclose that the accused has
closed his office from the date of issuance of
the cheque itself. The date of issuance of the
cheque is 29.07.2004. If admission of PW1 is
taken into consideration, the accused was not
34
running his office from 29.07.2004 itself. It is
not a stray sentence altered by the
complainant with regard to closure of the office
by the accused from the date of issuance of
cheque. But, he had explained the same by
saying further that he approached the accused
at his home and demanded to pay the dues
after one or two weeks of issuance of the
cheque. Admittedly, the cheque issued by the
accused was presented on 25.11.2004 i.e. after
04 months to the date of its issuance. The
complainant was very much aware that since
the date of issuance of the cheque the accused
closed his office and hence, he approached the
accused at his home for making demands and
such visits of the complainant was made after
one or two weeks to the date of issuance of the
cheque Ex.P1. So, it is very much clear that
even before issuance of legal notice to the
accused as per Ex.P5, the complainant was
very much aware that the accused had closed
his office as on the date of presentation of the
cheque. So, it appears that the complainant
had intentionally issued the notice to the
accused by showing his official address,
though he was aware that the accused had
35
already closed his office. The complainant was
very much aware of the residential address of
the accused as on the date of issuance of
Ex.P5, as he had already approached the
accused in person at his house. Inspite of that,
he did not make any efforts to issue legal
notice by showing the residential address of
the accused. So, the defence of the accused is
that he was not working in the address as
mentioned in Ex.P5 as on the date the notice
was issued. So, it is very much clear that as
on 28.10.2004 the accused was not working in
the address as mentioned in Ex.P6. When the
complainant was also aware of this fact, the
presumption about service of notice as against
the shara ‘not claimed’ as reported by the
Postal Department cannot be drawn in favour
of the complainant.
In the present case, the complainant was
aware of the residential address of the accused
as on the date of issuance of the cheque. He
made no efforts to issue notice to his
residential address. The main purpose behind
sending a demand notice is to give an
opportunity to the accused to make payments
36
due by him in respect of the cheque which was
dishonoured. If the accused comply with the
demand made by the complainant by paying
the amount under the cheque within
mandatory period of 15 days, then filing of the
complaint under Section 138 of the Negotiable
Instruments Act will not arise at all. So, even
after issuance of notice by giving a period of 15
days time, if the accused failed to pay the
amount, then only the accused is liable to be
prosecuted under Section 138 of the
Negotiable Instruments Act. In the absence of
evidence about service of notice, the complaint
is not maintainable.
The learned Judge of the lower appellate
Court at para-13 of the judgment has observed
that it is very much clear that the learned
Magistrate failed to appreciate the oral
evidence as well as documentary evidence
produced by the parties in respect of service of
notice which is mandatory under the
provisions of the Negotiable Instruments Act,
and as such, the order of the learned
Magistrate in convicting the accused is bad in
law and is liable to be aside.
37
The lower appellate Court at para-14 of the
judgment has observed that though the
appellant has contended much about the pre-
existing debt and issuance of cheque for the
purpose of security and tampering of the
cheque by the complainant by using a blank
cheque to fill an amount of Rs.5 Lakhs against
Rs.1.5 Lakh which was actually due by the
accused etc., the same need not be discussed
at this stage as the complaint filed by the
complainant itself is not maintainable for want
of service of notice against the accused as
contemplated under the Act. Hence,
considering all these aspects, the lower
appellate Court came to a conclusion that the
appellant has made out sufficient grounds to
set-aside the judgment passed by the learned
Magistrate in CC No.10325/2005 dated
29.03.2008. Therefore, the lower appellate
Court set-aside the judgment and order
passed by the learned XXV ACMM, Bangalore,
in CC No.10325/2005 dated 29.03.2008
convicting the appellant under Section 138 of
N.I. Act.
38
Criminal revision petition No.25053/2008
filed by the petitioner/complainant under
Section 397 of Cr.P.C seeking enhancement of
fine amount was also dismissed. However,
it was held that the order of dismissal of the
complaint will not come in the way of
recovering the amount due by the accused to
the complainant under civil law, subject to
provisions of Limitation Act, etc. The fine
amount if any deposited by the appellant is
ordered to be returned to him.
9. Feeling aggrieved by the same, the
complainant/appellant has preferred this criminal
appeal.
10. Learned counsel for the appellant submits
as under:
The accused respondent has acknowledged the
liability and he has made payment to the extent of
Rs.1,20,000/-. Accused has also not claimed notice.
The endorsement on the returned notice is “not
39
claimed”. The notice was sent to correct address.
The lower appellate court has not appreciated the
evidence in a proper prospective. Accused has
voluntarily admitted the liability. The lower appellate
court has come to the conclusion that there was no
issuance of notice by the complainant. The
complainant has issued two notices to the accused.
EX.P5 is the postal receipt sent to the residential
address of Manjunath i.e. No.9, Sri Lakshmi
Venkateshwara Complex, Banasawadi Outer Ring
Road, Bangalore – 40. EX.P6 was the notice sent to
the office address of the accused which was returned
with the shara “not claimed”. The accused gave a
blank cheque towards purchase of material in a sum
of Rs.1,50,000/-. The complainant has filled the
cheque in a sum of Rs.5,00,000/- and this has been
indicated in the grounds of the appeal memo. The
appellant submits that he has not entered into
compromise. The acquittal order passed by the court
40
below is not based on evidence and the materials
placed before it. However, the learned counsel for
the appellant wanted to clarify with regard to the
averment made in the appeal memo that the
observation of the lower appellate court that the
accused was liable to pay only Rs.1,50,000/- is not
correct and that the accused was liable to pay a sum