3.NJ>1r2AvEEN KUMAR,
MAJOR, _
FA'I'HER's NAME NO'? KNOWN 1
TO THE APPELLANT',
No.66, 3342 CROSS,
mm 'A' MAIN, Sm BLOCK, V
JAYANAGAR, V
BANGALORE--56€) 044. ' .. RES?' NI}EN"I'S
(BY SR1 M.M.AsHoKAf; ;xpv.;_r""_
THIS CRLA. I8_FILED.wU,!S;V378{AA§ C1?;v¥'.C.1v_'f'RAYING TO SET
ASIDE me GRDEIQOE' A;cQ:Jr1fm:, ~m,23;;~:,'2oos mssmn us:
c.c:.re0.238/02 on ma FELEL op 'ms---- A'DI)L.C.J.M. swam -
ACQUITTING 'I__'.i~~i'E" R1a;s§?0N9.j:;:N=r1A:*,ca;sEn FOR THE or-'muss
P/UjS.188 'V
TH;$"APi>Eé;:, C51': Fd1é"HéAI2ING THIS DAY, COURT
DELIVERED 'I'__I~£.!?. re*c:s:V.r,,_<_:i'£.*;1ns::§,_;__ --
.' ifi§§HENT
"is. by the appellant cha1.k:n$'ng the
of acquittal dated 23-03-2006 made by
me, ';&;de11;' Magistrate, Bangalon: Bistrict,
the rcspondcnts for the oflbncc
sundar SCC.138 of NJ. Act holding that the
notice has nod: bacn sent to the respondents within
‘i5–ti;ays from the date ofdishozaour ofchcqucs in question.
2. The case cf the appcliant in brief is that the appellant
is a partnership firm so also Respondent No.1, Respondent
%aPP°a’*%j%
N032 and 3 are partners of Rcspondcnt Neal H
respondents have borrorwead Rs.i,€){):,’0’O(}f«-.
said loan amount they issued sevtm (of ._
When the sand’ cheques were itcd fVGIf_ czafiéazsfiiifigéhi ” V
were returned with “bank crxlgiorscpm-sJu::;.t’v’i1i;~a115i35’1<$iactntv1i113:§is' dated
6/ 11/2000. Thcmfom 'gpt issued legal
notice an 22/11/$_-{3£!Q. any reply
from the V' against all
the V Court acquitted the
mspondcliifi 0._11A1§na:miatory provision of Sec.
1333;] of NLE.._f§ct complied with. Hence, this
A by the kxarsmd counsel 1231' the appcilant
§§ho is a oompiainant before the trial Court
pmseniégd Ex.-.=..P~1 to 11-7 to its Banker, 1'31 turn the
u for callcction to the Bankrxr of the mspondcmt.
"jchoqucs were returned with an cndoxscnktnt
j – ..':"}fls'i1ficicn.t Funds" as per Ex.P~8 dated 6/11/2000 to the
Banker of the appcliant. The Banker of the appcilant in turn
sent tha same to the appellant on 8/ 11/2000. Therefore notice
, r
.' _'L._,, _f,,,.
“”””” M
fix’
4′ ” . 3
has been issued to the axzcuscd Within 15 days .617.’
mecipt of intimation from its bank. Thcmfmr: it u V’
the trial Ceurt has committed a::¢'”é1’1*r:rA_§n
analyzing and assessing the end’ cnéaxg 1 ztshc
wrongly acquitted the rcspondkfinifi. ‘p1’* a-per ‘V
masons. Thcztfozt, appeal is §3iidvv«thc’§ord¢x’ of
acquittal is to ix set asiacmi is mat though the
mspo11dentsissucd_A’€”_i;t: £31′ but he has
bormwed *¢:1;*cziLp’i*i§>r’ and that he could not
rctalisc t1::é.sa_ m e it is prayed that in case this
Court allowéi ‘«:€iC!11blfl thx: cheques amount be
4_ . Tficzcfggp, he prays for allowing the appeal.
V Counsel for the appcliasnt has relied on
. . the acgim in case of M19 MUNOTH INVESTMENTS
v:a; :.M/s. PUTTUKOLA PROPERTIES L’r1:>., AND
.’_A.=e$r<3%:'}i'ELr2 mportcd in AIR 2001 5.0. 2752, wherein it has been
"Inter afia pmvidcs that the payee has to
make demand for the paymcnt of money by
giving a notice "to the drawer of the cheque
/I9:
./ ‘
‘ .
nut produced any bank statement before the :;’;:5% _
further argued that both the appellant as wcfigzs.
Bank are located very close to OH»;
Thcrcforc the date mentioned m_;’:”:_;;.1>-.9′ ind–i;u.e§t¢s; t§;.~i:’s: ,
was ciciivercd on 6-11-2000. Th(éi’x?é$z*s,_ they fight
in acquitfing the msponeiegt ; to be
dismissczd. ‘ ” – A .%
6. In ‘ counsel for the
rcspondcnt Court in the case of
RAN._m*HA.BALASfi’i§R;§M»§fi1g§ra__Am:> ANOTHER vs. snanmr
emu? ANLj”.QTHé3R$”‘§§cJp«§:&ted in ILR 2007 KAR 765 and’
4.\,Vanomez%f &ez::sion of OM SHAKTHI sags? AND
‘-.M1 NjoR r:*yi’ Caégbzj’ C0-OPERATIVE SOCIETY L’I’D., vs. M.
vE’s5_K;tTESi§”_~V_:cp§r£cd in ILR 2097 KAR 5125. He further
submifam the Court has got discretion to ilnpasc fine
” N ” af§iim:1:;t anti “not: the doubit: amount and the Court could either
‘saenifiixczzfi the aocusad or impose fine amount. Therefore, it is
130:-fixandatoxy provision to impose doubftc the fine amount, for
fisfhich he referred to another co»-oniinatc Bench dcrcision of this
Court: reported in IL}? 2008 KAR 1300.
‘fs
‘J. ___ /z)’
– 3::-/’
/’
7. Having heard the learned counsel f:§i*”‘§:s£.it}{ _
parties. Now, the point that arises for
dcaision is vcritxcthcr the Judgment Qf
by the trial Court is perverse, ingtmjrect ԤIIcga1!? Р1 S
3. it is an undisputcd”Vi’Z€=L:V;T§3;’ that is a
Firm who filnti a Rcspfifidfifit No.i~
partnership firm and Rcsp<'§r§dE;1'f%'I%';§$:. its partners.
Admittedly, the by Rfisponxicnt
Nos.2 and 3 v’§;?c3$};A3c;:1fient No.1. When the
chcqucs ..p:£:scntcd for encashmcnt tlm
same were mfdofscmcnt-Ex.P.8 as “insuficittnt
fizndsfl ; ” ‘I?’.hc1’cVf<5x"z::, ' i-'1pp£€:}1ant herein on the basis of the
f§x«.._P.9 issued by its banktzr informed the
cheques presented for oeficctions bcfcm
the Co-cxpcrativc Bank Ltd.., Avenue Road,
~ but the clzmqucs which went: sent for coflecfion of
of Inésia, Bangaiom were returned as "insixficicnt
. Ex.P~9 is the endorsement issued by the appcliant
._"4I}:'ankcr Whcrein the date 6/ 1. 1/ 2&0 has been mentioned. But
aoczsrding to the appellant he has received the endorsement
I I:
‘Z’
>/'”‘
/””/W
I.
fiom its banker 031 8/11/2000 to that eflbct ~..
tmdomcmcnt on EX.P.9, thetm-after
flfififlfi 1’33 the individual names of Rcspoxfisnt
Well as Respondent No.1 on to
N.Sm’ya Bhagwan came afivvéniifimcmcnt
“not claimed”. Thcrcforc, 4′ against
Respondent ‘A
9. ‘i”he7 the respcrndents
has assigzxzdv fith”e’ap§3ci1ant~ct3111p1ainant has
not (:’OII1}$1i_6!;i’– provisions of Sec. 138(1)] of
NJ. Act. ThE:L..§:h::qiic3″V to P–? were presented by the
_ uto its buafn-k:c;* for encashment. Since the chcqucs in
V. Equ ¢sa7§fi1a the respondents pertain to Union Bank of
1n¢12a,*’%%§::i.«s:;éi;;;&¢ banker of the appenam sent it for
<;oIicc°ti<m. \Exs3P*8 and 17-9 are: the cmiorscmcnts issued by
" .. nqspeéfifie bankers to the appellant. Ex.P-8 an
'::.tid'-<:§rssIficnt sent by flit? rcspeudcnfs banker to: the appellant
Ex.P–9 issued by the appeilant Banker. The only
–«cfifiesfion left for considerafioxa is Whether the legal :::1::atioc smxt
by the appellant is within 15 days from the date of mceipt of
endarstztmcnt from its banker. The tria} Court on xéfu
the endorsement mentioned in EXP-8 came to thé
that the endorscmcnt is dated 6} 1 1/ ‘iaraflfajéct
has not presented the cheque: befcmm cf” ._
Whcrc the respondents have a he ”
presented the cheque hefoyet its i;¢::,, SuB1’a.ma1’j1ycswara
Comparative Bank Ltd. Ci’ _ date has been
mentioned as 6/ 1 1;2<;_ro0, i:a¢l'g:g;gia::sc ;ficn§f":,f'thc resfiench-mt
banktzr was 01; 6 smit 133 t:IjéVVQappc}Iant's banker
i.e, Subrimaxxyesfifiaia. Bank Li:d., and in mm the
same: was siagtéé tg as per Ex.P.9, which was
_.the i-an 8/11/2002. If the receipt of the
V$iidn:;£:;n;3i1tvEX.P«9 is fakcn as 8/ 11/ 2000 then tbs legal
isésued by the appellant to the
:espo::4e1e:n:'is+,§;§+;i:11in the statutory period. Thc iaw laid down
by :11; Azpezxz; Court in case of ms. MUNOTH INVESTMENTS
3&3. M/S. PUTTUKOLA PROPERTIES L'I"D., AND
ff ,a:~;<f§T1»iER reported in AIR 2001 s.c. 2752 referred supra, is
appiicabIc to the facts 0:' the case on hand.
I 1
10. As fiar as the cantcntrion taken by +-
ctmnscl that the person who has the 13.-9 ‘
authmtisation to file a complain’ t is c’;:onc:en ed;..i11. flift.
cast: the complaint was libel .by..__ *
Ramamurthy, for and on behalf of There
is no need to produce of -;?Q1ttg:fijiL§;_’¢3ii”a11tho1isation from
other partnezrs. The; law in the case of
RANJITI-IA EALASUBEAMANEAN: A’1~::§’ ANCYMER vs. SHANTH!
GROUP AND. — i”11~!~Li% 2007 KAR 765 is not
app}icabI;§;_ S0 by this Court in the case
of OM sfihmm ‘S£;fi;’.ST.’:_”..’AND MINQRITY CREDIT co-
4._VVDPER&’§ffi/E s0(iI1a3<r$zV1____m).,vs. M. VENKATESH reported in
V. *- IL£z is 3130 not made applicable to the fmts of
th€.caiga::; "'fii~v_..V(}?Qj;"'SHAKTHI SC/ST AND MINORITY CREDIT
V V} SO~OPERATiV!§ SOCIE'I'Y'S 1:rz:::., case the complaint is flied by
" M pxgsidéni ofthc Sociacty, therefore he has tn produce power
Qf 'amriiey or authorisatioxx to file a complaint. Since the
pmsidcnt has filed the complaint Without authoriisatism, this
rightly dismissed the appeal preferred by the appcllallb
complainant in the said case but in the instant case
.» \..
‘ :;w”
‘:7. _4—3″‘>- ff
A;
-1}-
considezdng the fact that the appclkant is a
and complaint filxzd y its managing partner then; Vii)’ _&
file any authorisation to fik: tht: <:0mpmV':int ' A
11. The trial Court ca1cu§atingA *i:hx f'(;;:1usc ‘QfAact*2oif1=.ift:3%v’V’
film’ g a compiaint from ?/1 1/atotallyvh
9 of the complaint it is spc;«r:i_f:§<:a1ly.A £a'*'a':¢.=:;*.'5_1:'::<."lVV by' the' that
the cause of action fior –;iiffcn:nt dams
11.6., 6/ I 1/ 2000 and. :8}; 1/ can not resist
service of €152» mi Lfiawfgéflgc, the appellant send
the notice Wh_'i'v::h by the respondents. It is not
the case of tiic._ :'t:s3p{$r;<ie3:t the address to which notice
_s¢nt In behalf a reference is made to a
'«:3.cc:Ai$i:;«.n:V of'? tfi1c~ iH'a1:;'blc Apex Court in the cam of C.€§.AL.AVI
HAJ:_é?S ,%«PA£7;;9E1fr$3 MUHAMMED AND ANOTHER reported in
(-2.2007) ""6 scfcz Thcrcfam it couzd be said that the
H " " 4.it:sipe:usicnté."'ca.. $111011 contend that then: is no proper sermon' of
-izofiee. The trial Court without pmper apprcciaticn of
VT jjdccumcnts placed on rczcard cam: to a wrong conclusion in
” the respondents. Hence this appeal is to has allowed
V. by setting the order of acquittai passed by the trial court.
12. Counsel for thr: appellant vchemt;Iatl.3f: .. V’
since the cheques have been issued in W139?
not cncashcd on account ef {he ,
Court may impose sentence igicublcV”t31é”fi11é’:’:Eamount
Imposing of he amouz;.€i*..Ais
Thercfom taking into ” km and
circumstances gf fine in all of
Rs.80,{}OG/-
13. .– The Judgment
and oxtitifigf the trial Court acquitting the
rcapondrcnts asiiic and Respondent Nos. .1 to 3 am
for the §§fi’cvfiv<v:_g;__'p'unishabIe under Sec.l38 of N .1. Act.
and 3 are sentenced to pay fine of
default of payment of fine amount thcy
shall . for thzvcc months cash. Aftnr dcpasiting the
..an:'1ou1"r£.of Rs.80,000/-, by Respondent N032 and 3 the
be payable to the appcizam herein. In
Sd/–
Judge
Lr