Metilda D''Mello D''Mello Mansion Mulki Post, Chitrapu, Mangalore vs V. Rajan

Subhash B. Adi

This appeal is by the complaint against the judgment of acquittal passed in Crl.A.No.348/05 dated 30.8.2006 on the file of the FTC-I, Dakshina Kannada, Mangalore, reversing the judgment of conviction passed by the JMFC, Mangalore in C.C. No. 1510/04 dated 17.10.2005.

The case of the complaint was that the accused had borrowed a sum of Rs. 12,500/- from her and towards the discharge of the said liability, the accused had issued a cheque bearing No. 214468 dated 8.1.2004 drawn on Syndicate Bank, Katipalla, in favour of the complainant. However, on presentation of the said cheque, the banker of the complainant returned the same with an endorsement "insufficient funds". The complainant issued a legal notice dated 19.5.2004 calling upon the accused to make payment. The said legal notice was returned with the postal shara "addressee absent". Since no payment was made within fifteen days, the complainant filed a private complaint u/s 200 of Cr.P.C alleging that the accused had committed an offence punishable u/s 138 of the Negotiable Instruments Act. On summons, the accused appeared before the learned Magistrate and pleaded not guilty.

The complainant to prove her case got herself examined as P.W.1 and produced Exs.P1 to P5. On behalf of the accused, he himself was examined as D.W.1 and Exs.D1 to D5 were marked in his evidence.

The trial Court on appreciation of the evidence convicted the accused observing that the complainent had proved that the accused had failed to make the payment due under the cheque and has also observed that the defence taken by the accused does not probabilise that there is no legally repayable debt.

As against the said judgment of conviction, the accused filed an appeal before the lower appellate Court. The lower appellate Court, relying on the evidence of D.W.1 and Ex.D2 in relation to certain payments made in favour of one M/s. Chinar Impex and also Ex.D3, the cheque said to have been issued by M/s. Chinar Impex to one Sukumar Bangera, held that no consideration has been passed on under the cheque-Ex.P1 and accordingly, acquitted the accused. It is against the said acquittal, the complainant is in appeal.

Heard Sri. Amar Correa, learned counsel for complainant and Sri. P. Karunakar, learned counsel for respondent.

The facts, which arts not in dispute, are that the cheque bearing No.214468 dated 8.1.2004 drawn on Syndicate Bank, Katipalla, is from the account of the accused. It is also not in dispute that the said cheque was returned dishonoured for want of sufficient funds/account closed, D.W.1 in his evidence has not disputed the issuance of the cheque. The defence of the accused to rebut the presumption of debt u/s 139 of the N.I. Act was that (1) the accused had not received the notice; (2) that accused was in possession of Ex.D3, the cheque issued by M/s. Chinar Impex (3) that when the complainant was working in M/a. Chinar Impex, the accused was a member of M/s. Chinar Impex and he had made others also as members, for which M/s. Chinar Impex was in pay Rs. 5,000/- and further (4) that he had made payment of Rs. 8,300/- to M/s. Chinar Impex as per Ex.D2.

It is not in dispute that the complaint was working in M/s. Chinar Impex. it is also not in dispute that the cheque-Ex.P1 is not issued by M/s. Chinar Impex or the accused had issued it in favour of M/s. Chinar Impex. The complainant''s case is that she had issued a cheque to the accused towards the loan taken from her and the cheque was from the account of the complainant and not from M/s. Chinar Impex.

The lower appellate Court while reversing the judgment of the trial Court has got itself confused as regards the transaction between M/s. Chinar Impex and the accused and the cheque issued by the complainant to the accused.

The complainant was working as a Assistant Manager in M/s. Chinar Impex Helping Services in 2002. The accused for having become a Member and also making others as Members was not paid Rs. 5,000/- by M/s. Chinar Impex under Ex.D4 is also not disputed. But P.W.1 the complainant in her evidence has stated that the said Rs. 5,000/- was not paid by M/s. Chinar Impex as the accused had not made minimum five persons as the members in the said M/s. Chinar impex. However, the lower appellate Court relying on the evidence of P.W.1 that there was no limit as to the number of persons to be made as members has observed that the accused was entitled for Rs. 5,000/-from the complainant as the complainant was the Assistant Manager. This finding arrived at is contrary to the evidence.

It is not the case of the complainant that she had paid the money from out of M/s. Chinar Impex account. It is not the case of the complainant that the accused was due to M/s. Chinar Impex. The case of the complainant is that she had paid the money to the accused and the accused had issued a cheque to her. However, the lower appellate Court has treated the transaction of M/s. Chinar Impex as the transaction between the complainant and the accused and even the payment as per Ex.P2 pointed out to the complainant is not the payment to the complainant but it is the payment of M/s. Chinar Impex. The lower appellate Court has held that the complainant has not passed on any consideration under EX.P1. This finding is perverse and contrary to the case of the complainant. Just because the complainant was working as Assistant Manager in M/s. Chinar Impex in 2002, her personal transaction cannot he treated as the transaction of the said company.

The trial Court on the very same evidence cm proper appreciation has found that the accused had Sailed to examine Sukumar Bangera, who is alleged be the payee under Ex.D3 from. M/s. Chinar Impex. He had not examined Thomas Prasad who is alleged to have received the cheque Ex.P1 from the accused. The accused had contended that he has not given the cheque to the complainant but he had given to one Thomas Prasad. Thomas Prasad was working in M/s. Chinar Impex. However, neither Thomas Prasad nor Sukumar Bangera have been examined to prove the transaction or any link or nexus with the transaction, of the complainant.

It has also come in the evidence of D.W.1 that at the time of issuance of the cheque to Thomas Prasad, the account was closed.

The trial Court has rightly observed that the accused could not have issued the cheque from the account, which was closed nor the said Thomas Prasad could have accepted the said cheque despite knowing the fact that the said account was closed. The trial Court on proper appreciation of the entire evidence has held that the complainant has proved the transaction and that the accused had failed to make the payment due under the cheque and that the defence taken by the accused does not prove that there is no legally repayable debt due to the complainant. The lower appellate Court getting confused with the transaction between Sukumar Barbara and the accused and the transaction between the complainant and the accused has erroneously acquitted the accused. In my opinion, the judgment of acquittal passed by the lower appellate Court is not sustainable.

As far as service of notice is concerned, the accused had not disputed his address nor has produced any evidence to show that he had not received notice nor was aware of the notice. Further, the lower appellate Court has not acquitted the accused on the ground of non-service of notice but on the ground that the connsideration under Ex.P1 was not passed on to the accused. As such, there is no need to go into the question of non-service of notice.

Accordingly, the appeal is allowed The judgment in Criminal Appeal No. 358/05 dated 30.8.2006 on the file of the FTC-I, Dakshina Kannada, Mangalore is set aside and the judgment of the trial Court in C.C. No. 1510/04 dated 17.10.2005 in confirmed.