IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF DEcEM13EIél:'2-oIj1.o"'I. V
BEFORE H V l .
THE HONBLE MR.JUS'I"§CFL
CRIMINAL APPEAL No.27o/2067 Cl{'ll\/llI'-I.AL
Nos.271/2007 TO 278 as: o"RI,.R.P'.I\Io';"a22';'2:oo7 '
CRL.A.Nos.270 TO 278/2007--- _
BETWEEN: V _ 5 I '
M/s.Vijaya Steel Ltdg" ' ' __ _
No.37, II Phase, Peenya 1'n.dustr.Ia1--Area{_f ..
Bangalore -- 5SO_058/W l 3
Represented 'b'31i.t*s GPA Holders ' as
I .
S/ o V.Rama_bh:att'a*--, .: 6~3..Years'
R/at 79/ I , 'flew }3anIbo'o«13a2.aar
Bangalofe .-- $60 002 3 " 4' .. .Common Appellant
(By Aofvocate}
I _ ' 1» . I\/I,/'s;s~.II\'/*.I.oEII
uby VAI'f;s..~Partners
* "--.I'Impe1'LialA'ICourt, Cunninghanl Road
No; 19,31 31- Floor, East Wing. Bangalore ~ 560 052.
2. Sr§_IlK.M.M'ustaq
V " Partner, M/s.Modi
flmperial Court, Cunningham Road
" No.19, 15' Floor, East Wing
Bangalore -- 560 052. ...CoInrnon Respondents
(By Sri.M’.Shivappa. Advocate}
Criminal appeal nos. 270/2010 to 278/2010″-are filed
under section 878(4) Cr.P.C., to set aside the.Vi1’~mp1_,1gned
judgments and orders dated 20.12.2000. “–p’asfsed-« in
Crl.A.No.1474/2005, I475/2005, I476/2005,”’14?7)’200r5,
1480/2005, 1479/2005, 1478/2005;j .1481/2005,
1482/2005 respectively on the file of the–Presiding.Officer,
Fast Track {Sessions} Judge-V, Bangalore Ci.i:y_.:’-v V
CRL.RP.No.322/2007
BE I WEEN:
1. M/s.Modi _
Represented by its Partner ”
Sri.K.M.Mushtaq’_ f 0′ .,
Imperial Court, CiL1n;ningha;m» Roa,:dapl
No.19, 15* Floor, East’Wing ‘ 2′ V
Bangalore #560 052′.”.”& 2′ V’
2. si~ii;K..M’.”Mus;i;aq ” 0
Imperial {:’;ou_r’ti. y Cu_ri”ni_ngh’am Road
No. 19, 1-“? F1~0’0r, ‘East Wing
Bangalore -~.-_56.0« …Petitioners
[By Sri.M’Pa1aniapplan, TAdvocate}
Ltd.,
~. No;37,’l.ijPh’ase, Peenya Industrial Area
Bangaioreje 560 058
Represerited by its Power of Attorney
Sri.VV.R1. Krishna Murthy
‘ is 8/0 V’.’Rama Bhata, Aged about 63 Years
_ R/”at No.79/1, New Bamboo Bazaar
Bangalore – 560 002. …Respondent
(By Sri. S.i\/lahesh, Advocate}
This petition is filed under section 397(1) C’r._P.C., to
set aside the judgment and orders dated 20_12._20_06 in
Criminal Appeal No.147’3/2005 on the file of”_Fa_s’t_ Track
(Sessions) Judge–V, Bangalore City and judgrn’eritVjand ;_or~:ier
dated 22.09.2005 passed in C.C.No.32014/–1’999_by”‘the:X’J
ACMM, Bangalore and acquit the petitionersl” »
These appeals and revision .()n_pli”loVr_fi’i1al’~.._
hearing this day, the Court delivered the fol~l.oWing; ~
J U N T
In Criminal C/W Criminal Appeal
Nos.271/2007._to 2753/V2007,’ Limited is the
comrrion”a:ppe1la:nlt represented by one of its
partr1erl’S1’i. K.iVi..’Mds1,aq,,ai:e common respondents 1 8: 2. In
Criminalk Reyis_ioi~:,d “Petition No.322/2007, M/s.Modi.
.I’f€lpF¢se11ted of its partner Sri K.M.Mustaq are
p slpetitviolners 81 2 and M/s.Vijaya Steel Limited is the
” . revsponden
AA 2. .0 -…’i”he appellant in all these appeals {hereinafter referred
“.i_of.–as ‘complainant? had initiated complaints under section
200 Cr.P.C., in C.C.No.32014/1999 to C.C.No.320i8/1999,
C.C.No.32060/1999 to C.C.No.32064/1999. for dishonour of
W. c.-ea ::«~w-‘»..
cheques drawn in favour of complainant by I–respondent
firm, represented by its partners namely and
K.M.Kaleemulla, who were arrayed as
[hereinafter referred to as accused 1 to
The learned trial Judge held land”
offence punishable under’ s_ectiol1’1._v1’38 of’ll’l’tbe4_v’Negotiable
Instruments Act, 1881 (for Accused No.21
K.M.l\/Iustaq, as a partner.’of challenged
the judgment of a–forestated cases by filing
crimirialrii…:’%’3p:$éé:1– ‘mj;-14-7z3t}’:2’0’o5 to Criminal Appeal
I~appellate Judge reversed the
judgmelnt–,lof~ by recording a finding that notice
ca’¢.1se_d the”‘coHm.plainant was not in compliance with the
‘ section l38{b) of the Act and acquitted accused
v2l.V–V’gj~:fh;’elrefore, complainant is before this Court in
aforpestateld appeals.
Criminal Revision Petition l\io.322/2007 is filed by
accused No.2, against judgment of conviction for an offence
punishable under section 138 of the Act made in
3’\’-‘;_ ..\. ,/\f.«,-Jiv. ”
C.C.No.32014/1999. Confirmed by I–appe11a.tt:HC0’i;2ttx in
Criminal Appeal No. E 473/2005.
3. For the sake of c1ai’ity,AA»vappea..1’s”‘fiii§d,Ftiéfore
Court with corresponding case ‘».nuifrib.8rs ‘–1;e1’o’re ‘Court 2’
and I-appellate Court and C._}_16q11F€13_.0}1Vth0!”b§i0i§
complaints were initiated are2v24t’aF1:m1_8ited2 é’u:_V:f0’1iowV8:.
. Ch.N0.l88542
. _ V ‘.V__cc-.3_2_01~8/_99 Rs.1.39,368/~
CrI’A’N°f2″7U4 ~ 22 C0iC?f2(t1)0-8 5C12001\;Od::1:c?/ 05 (336998
“‘3O9fv’,’ ‘ _ “;Fi11e _ 20.12.2008 Ceriturion
‘ _V aRs.~2_.28,__400/A Bank Ltd..
Barigaiore
~ = FCC 32.015/99 Ch No 188537
Cr1.A.I~L’.().2’7 1/ .22′ %§9’1:%O5 C’;gb%°&:’::’;’/ Rs.1/$2.360/A
– 2007. ‘ .’ . dated
= Fine 20.12.2006
.________Rs|2!36’64O/_ . 27.11.1998
V cc 32017/99
c..1;11.1×11..;m, 22 333305 C;gg;;;g;+;g/ §2.’?%§.8fi§iT
200072.-‘” ‘ .’ ‘2 dated
« « Fine 20.12.2006
. . V RS_2!34_6O0/_ 02.12.1998
A V CC /99 CrA N0 1477/ Ch’N”‘188522
*CrI;A.I\¥0.273/ 22 0902005 2:065 (‘hfed Rs.1,42.l95/-
‘ 2007 ‘ ‘ ‘ ‘ dated
Fine 20.12.2006
RS_2!40_9IO/_ %8.II.I998
cc 82082 99 . .
dated / CIA N0 1480/ Ch’NO’188538
CrE.A.i\i0.274/ 22 O9 2005 2’0b5 dated E 40.309/A
200′? ‘ .’ . dEH.Cd
Fine 20.12.2006 _
RS’2’_38_OOO/_ 30.11.1998
in Crjfninal Revision Petition N0322/2007.
CC 32061/99 ~~f’5h.N0:’V288’535
6 Cr1»Ag%g75/ 22_%’SiZ%o5 C%’33?a1f:Z§’e
Fine 20.I2.2O.(V)'(‘3 ‘Z6141 0199-8
Rs: ‘?!”)R’A.(‘1r”|/- ‘ ” ‘
CC 32°50/99 ” .. -1’ C:n.No.’1’885’33
Cr1ANO 276/ dam .CY’A~~N9e*1’*’78/-. “R331 21.1 146/-
7 ‘ L200’? 22.09.2005 ‘ 2005′ dated’ _ ‘
Fine. ’20.I_2.20050.’.’_ 2 ‘ 19 1’g_,8’y
121424141111/– ‘- 1 “‘-._V_’
– -{ , . .
8 C”1’A’N°’277/ 22.09.2005. 2-005 daLed-_ 0RS’1’40’7E’0/”
2007 . .4′ ‘A ‘ , ” ‘ dated
. ~~..If’1ne’« ‘- _4.20.’1.2.2O0b 21 11 1998
Rs;–2.138.O~_O0/%{_–‘v ‘ ‘
CC /99 : Ci~’;A;N<§.}'1–z182/ Ch'N°'188§40
9 Cfl"A;§j°'278'/V 22}0'9'.2005 2005_d'at,ed RS'62'89b/"
07.. ~- 1 ., .1 . ~ .. ,. _ dated
_ Else QQ,_.l2.2006 07 121998
%_ _. Rg;;,00,480./»”- ‘ ‘
” Ch.N0.l88E335
‘V “ee_321n.4/99 Rs.1,39.267/~
C_rLRP.N.o.32:’;,__ _ ‘d__ai.ed ~Cr.A.N0.1473/ dated
10 /’2007 ‘ 22.09.2005 2005 dated 25.11.1998
* . . F:.n_c« 20.12.2006 Centurion
” Rs,2’;*3.6.’6__40/~ Bar1kLtd..
* 2′ ” Bangalore
4.. ‘ “have heéird Sri Mahesh, learned counsel for
M.Sh1vappa, learned counsel for accused 1
and M.Pa1aniyappan, learned counsel for petitioners
As per averments of complaims, complainant is a
private company iimited and it was manufacturing steel.
r\: ,,£v»fi/W’*Q* ‘
Accused No.1 nameiy M/s.Mod1′ a partnership”con’ce’rn’,’~..was
purchasing steei from the complainant.
between 03.11.1998 and 1:7;’11–..199–‘8, ;i1e.1′,:
represented by its partners accusedifii
several items of steel conip1ai’n.an’t: invoices
dated 03.11.1998, ,.o5.11,1e99f8,”07111.1998,,..71o.11.1998,
14.11.1998 and 17.”’11”.c1.9’98f§–.fer of Rs.1,42,195/-,
Rs.1,4O,76O/_=;’Rs.1,:4″1V;5’f12,/fi,-Rs_.x1#3919197/–, Rs.1/12,360/~,
Rs. 1 ,4o,3.o9(–,iii:j:1§e. Iv,9:9_1’368/.9, :Rs.119’9,115/–, Rs.1,-41,146/–
and order to discharge invoices
arnovuntif, _ ched;ues.9VWe:fe-. _fi1i’.aW’1’1 on the account of accused
No.1– fii*r1–1 lids-.part1’ne19s namely K.M.Mustaq [accused No.2]
11.1./Iv1Ka1eem1_11.1.a (accused No.3). The foflowing cheques
‘ V.V9’wCrevVissued'” favouring the comp1ainant:–
H V”‘v.’fC’h’eques for Rs.1,42,195/– dated 18.11.1998
V””hea1″ing cheque No.188522, Rs.1,40,760/– dated
21.1 1.1998 bearing cheque No. 188530,
Rs.],41,146/– dated 19.11.1998, cheque
No.188533, Rs.1.41,582/~ dated 23.11.1998,
cheque No.188535, Rs. 1 ,39,267/_.~§_V ‘ 1.
25.11.1998, cheque No.188534, 1§s1’i’,—4.2′,?38o/t-
dated 27.11.1998, cheque 1§1cj;i1:v8_853–:?;
Rs.l,40,309/- dated “»3o.:11″1,.1’998_,
No. 188538, Rs.1,38; 11 5 .dated 92’t;;12,1.99_}3,
cheque No.188541}”‘JT”*Rs.l,.39,$6’8/=» ljédated
05.12.1998, cheque 1§:c,.1f885z12 and Rs«..62Q§896/~
dated 07. 12. chequeviNo.§:}viS8540.”
6. On p.1’e.sentati{9’n were dishonoured.
notice to accused No.1,. dpaerthers, accused 2 & 3 on "days from the date of dishonour of
cheques’;jfhev “wite.t’e’ served on accused, however there
was no re’s”pon_se_ from them. Therefore, aforestated
“c.onipiaint.s”‘~-were initiated by the compiainant (appellant
7. ” _B1efore the trial Court, accused No.2 was examined as
A Accused No.2 did not dispute signatures of accused 2
3 on the cheques. Accused No.2 also did not dispute
issuance of aforestated cheques in favour of the
complainant, however, he had contended that cheiq-u:es_ were
not issued to discharge legally recoverable
on the other hand, all the ten cheques_were:~i.ss’uedA tQrtl1€ll”‘.
complainant as advance amou:nt:..foriv to”
accused No.1 — firm. The cornplaiiialnt
However, complainant presented _chec;u–e_s:lt’o initiate these
false and frivolous accused. In other
words, defence of were not
supported Eby”~:cVons1rle1*at-ionI ~:.was,ilalso contended that
consiolidateci, complainant is not in
accordancel witirtzhe’vprovisions of section 138(b) of the Act.
The com”pl.ai’11an’t should have issued separate notices in
of dishono-Jr of each cheque to have a distinctive
c’aups’e._ action to initiate separate complaints. The
9′ .co’1nplain”1:’j’vi’eas initiated by one V.R.Krishnamurthy, who is
statedatov be the Manager and Power of Attorney holder of
2 9′ il\/i’/ps.Vijaya Steel Limited, on the basis of a Special Power of
u”§}ltt.o1’ncy executed on 01.03.1999, stated to have been
H executed by the Director of M/s.Vijaya Steels Limited. The
N’ ‘h_hL
said company passed a resolution on 28.'”l-2.1999,
authorising said V.R.Krishnamurthy to ‘these
complaints, almost after a period of 10 months
of initiation of complaints. ‘:lf”n’uS’,”.co’mp_laiAn’vts gw’eTret”‘Vnoti’. it
initiated by complainant and th’eV_pe_rson had” –ini.tiated
complaint had not been au~t:h’or1sed.V’to__ in!tia1;excvoVrn’pla1ntstin
accordance with law, .
8. The complainant’ and produced
‘docume.nts;”to”prove”that ‘axfor’esta–tedcheques were issued to
discharge ui”ecov_erable~’debt. The contention of accused
that cheques “were in advance for supply of steel is
untenable. “‘lT1r_V1_eV’consolidated notice, giving particulars of
” «_transactions with reference to each of the dishonoured
*c_heques_.gV indicating the amount for which cheques were
d«rawri also dates of dishonour of cheques and specific
up {demand to make good amount under the aforestated
Vcheques was in compliance with the provisions of section
138(b) of the Act. The theory of defence that cheques were
issued as advance for supply of n1aterial is untenable. In
av. my/«~ «Q» ‘
4 ll
fact, in respect of each transaction, complai11ant:liad-.raised
invoices in favour of accused No.1 and thereafter
delivered to accused No.l– t’irrr1::’I”‘;1e.lofj l
legal notice dated 10.02.1999
theory of defence that ciiejcfues lK?G]{‘6’ Alsifijported
consideration was ,.a. stibs-eduent«»..yAinyeritionto protract
proceedings, in orderato complainant. The
cheques the account held
by acct1:sed=Accused No.2 in his
«th_’aL”accused 2 & 3 were partners
of accusedl iajrtdhcheqties were jointly drawn by
accused°2., &* 3 ‘in of the complainant. The defence has
case that~v…si.gned blank cheques were issued to
‘ V. ‘ Lomplaina nt.–._
learned counsel for complainant by relying on
the” documents produced by complainant would submit that
, lfjresumption available under section 139 of the Act was not
rebutted by accused. !”\?~ 4- ‘i’-“~”5>\ 1*-546%’
— 12
The learned trial Judge accepting the version of
complainant and rejecting the defence ve1’siorl;’wLconvicted
accused as aforestated. Accused No.3, had v’..»:’S’$’l’,1l’.’lJt?.,I”€”.j
conviction as a partner of accused No.”l”¢~–.u’_fi1’n’1 V4d.id–Vr1ot_
challenge the judgment of conviction.” No.2 2
namely K.lV£.Mustaq preferred.uafores-tated appeals,
9. The learned Judge oI’&.I>’ap.p:ellate. Court’,”cohcu1’1’ed with
the findings of trial :th”a.:’t were drawn and
issued by accused to discharge
legally ‘pre’sumption available under section
139 of Act’ »~l:J;”O@*.44IV’€bult€Cl by accused to hold the
co,giti’a.:. defe1″1ceve1’sion that cheques were issued in advance
steel and the complainant did not supply steel is
fi*ivolmAjs..vV’l’ complainant had proved that cheques were
is’sued_v’to-td’ischa1’ge legally recoverable debt.
The learned Judge of I–appellate Court accepted
defence contention that the complainant should have
–”issued separate notices to have a distinct cause of action in
J\7\ “M 0\ “~*<7-Fe;-~=
13
respect of each dishonoured cheque. ‘1″‘herefore,.le–gal notice
dated 10.02.1999 was defective and it was notépin lalcciordance
with the provisions of section I38[b} of the
Judge of l–appellate Court has””he1¢d ‘l_unlelsAsl:v ‘-tl.ieH=fivef’
ingredients to constitute an
section 138 of the Act ‘are’~v..pro\}e’dt__byVVlltvliielt.icomplainant.
accused cannot be held of an C oifencfii punishable
under section 138 of”t–he.Ac.t. antl acquitted accused.
10. In«CrinfiinalizReyision.1$et1″t1on:No.322/2007, the trial
Court. andlv have recorded concurrent
findingsélin favour’ ofixtlontplainant. Both the Courts have
ccfncurrently. that cheques were issued to discharge
rec’oye1″able debt. The notice issued is in accordance
provisions of section 13863} of the Act. Both the
Courts’ have rejected defence version that cheques were
_ issued in advance for supply of steel on future dates and the
it *co.n1plainant had failed to supply steel. There are concurrent
findings of trial Court and I-appellate Court that accused
No.1. represented by accused 2 81 3 are guilty of n offence
6\? I 5′ ”
I\ ‘1.
i
3
r.’
~ 14
punishable under section 138 of the Act. As alreadyflatated,
accused No.3 namely K.M.Kaleemulla, one of
accused No.1 M firm has not challenged the of trial’ j
Court. Accused No.1 —
K.M.Mustaq [accused preferrecglll§}Arliininail:Appeall
No.14:/3/2005. As ,….alread.y-ll:”ysta’teAd, .lll¥a’ppelllate Court,
concurring with thell4lilri§j.ingg’l’:-Q1′ dismissed the
appeal. Therefore, by its partner
accused:_.No:2 Crirninal Revision Petition
NO.322l]’2QLC’f7 al§ainslt~conc’ur’rent findings of trial Court and
Iwaplpelllate ‘C_C)l1l,1~l1:~.f[.’/c.j~i1el’e.olr1Vt_entions raised in revision petition
by parties are with the contentions raised by
Vparties in theAse«c.ri_minal appeals.
V lll”l._ l_’i3efore adverting to submission of learned counsel
parties regarding maintainability of complaints,
teriability of legal notice and non–existence of legally
recoverable debt. it would be useful to refer to the evidence
adduced by both parties before the trial Court.
,. 15 _.
12. On behalf of the complainant, the Manager and
Special Power of Attorney Holder namely
was examined as PW1. PW1 has given oral .¢’v–:denjce”1~»e1aung
to transactions which culminatedwin. 4init.iatio’n–Vof complVaints~
as aforestated. PW1 has given of it
steel to accused No.1 — andA’issua_nlceA oI””ehe*ques
accused.
The cross~eXamin.-ationvPWZI’ vi>s~.ldi.rected towards his
locus«stand.i«’tojinitlate consolidated legal
notice issi ied” bvu the lcoinplairiant.
13._ l°AcC’L1sed lV’–o.2=~>’l{.l\/E.Mustaq examined for himself as
13?’./’lg’, onlj}Vl’o11——–nis behalf but also on behalf of accused 1
‘ DW1 has not disputed issuance of aforestated
” .c’hlequesv’.”f’j’ has specifically deposed that aforestated
Che-ques [cheques mentioned supra) were drawn by accused
2 as partners of accused No.1 – M/s.E\/lodi. DWI has
deposed; complainant had assured to supply certain steel
l material; in good faith, accused 2 & 3 as partners” of accused
— 16
No.1– firm had issued aforestated cheques and delivered the
same to the complainant.
14. In order to appreciate the
necessary to state that the [pcorr1_pla;inapnt_has*prod.ucedl’—-_
invoice copies, corresponding :¢’—-¢§ch ofV.the..
cheques. The invoices were much. before foilieoues were
issued. If the compIa’i~nant:’Alhladvvtprepsented lchedvues, without
supplying the materiah have definitely
instructed §tl*mirrVV1’barll\v~<£1-.
-17
there can be no doubt that there is an initial
presumption which favours the con1plainantf
S. 139 of the Act is an example of a reverse
clause that has been included in l ~
the legislative objective of the it
credibility of negotiable ziinstrunient-is.– .1: _
Section 138 of the Act spec’i.fie’sA_la(strong crimiliiai
remedy in relation to the disnonour A l
the rebuttable presurnlptiioii under S:ee’tionlV3139 is
a device to prevent undluefl in thecourse of
litigation. Hovvever, remembered that
the off6,T~1_Ce 1T13.Cle.:..p1.1ni–5li/abllléLIéS7.:;.Sl:I38 can be
H a regulatory offence since the
bouncinglfofla.pchet1’u_es is largely in nature of a
impact is usually confined to
–. the it ..,rivate parties involved in commercial
;_..rtransacti.or1–s;~«”in such a scenario, the test of
proport_ionality should guide the construction
A interpretation of reverse onus Clauses and
theétaccused/defendant cannot be expected to
discharge an unduly high standard of proof. In
lithe absence of compelling justifications, reverse
onus clauses usually impose an evidentiary
burden and not a persuasive burden. Keeping
this in view, it is a settled position that when an
JV ~ .9/\.«–<«?f4«,
18
accused has to rebut. the presumption
Section 139, the standard of proof for .
that of ‘preponderance of it
Therefore, if the accused; to I’
probable defence which c’reates’
the existence of a Fegally eIifoli’ceabl_;ell’
liability, the prosecutiofn.:.c’a_n fail.r_ accused
can rely on the matte’1″ia_ls ll’su_b;nitte’ciA the
complainant inl’o1’derl’to defence and
it is conyc_eivable–that. in. ‘the accused
;nay;noi”y;.pVpr1eed1._to add’ucel–:_levi.dence of his/her
o\A¥IiL’;lfl.\”.,V;i’~’7’l’ if A it it
the accused have not disputed that
they had.d1’awn__chet1uels in favour of the complainant and
issu’ed..__c_h.eques. Therefore, presumption available
‘ 139 of the Act would arise that cheques were
discharge legally recoverable debt. In the
cilreullinstance, burden sh.ifts upon accused to rebut such
if ‘presumption. The accused have not adduced any evidence to
‘rebut such presumption. On the other hand, I” find nature of
defence raised by accused is totally untenable. Therefore, the
x,. 1’–\ ~~¢.Q.s\.
1.9
trial Court and I–appellate Court have rightly held that
cheques were issued by accused 2 8: 3 as–‘_”partne.rs of
accused No.1 in favour of the complainant
legally recoverable debt.
16. The accused haVe_ qzi.§:’se§n§d loctist
V.R.Krishnamurthy. to initia«te”a.nd vprosecuhte «complaints as
the Manager and lvvlholder of the
complainant — The complainant
has produced! power Qt iattoyrney. by executed by one of the
Directors Steels Limited, constituting Sri
V.R.Kri’sh11amurthy .– it power of attorney to initiate
pr;oceedings”‘andVprosecute proceedings on 01.03.1999. This
«act “ratified by M/s.Vijaya Steels Limited by its
28.l2.1999. Therefore, E hold initiation of
A and prosecution of complaints by
AA Riiifishnamurthy is valid in law and on facts.
The learned Judge of I–appe11ate Court has
H accepted the contention of defence that the complainant
We Wc;–a…z..
~ 20
should have issued separate notices in respectof each
dishonour of cheques and co–related transacti.:3~ns-;_:nnless
such a notice is issued, cause of action
initiate a complaint in terms of section ]{1:2″o’f: ll
18. The learned counsel
judgment of the Supremelitiourt, re.po1ftecll_i;1 8
300 (in the case of ;–‘.I{x.R.Ind’ira.’li’:v.llDzfiG.Adir1arag;rana] would
submit that notice issued cheques should
contain spe.c1_fi;¢ of the sum covered
by .che’q.i1e_Vl’d.is’honQured, mere fact that it was a
consolidated ln’oti’cel; that further demands in addition
to; ti1ei.statu’tr)i’il}? envisaged demand were also found to have
” A V not invalidate the same.
Iv. V l ‘lvevyffhaevllearned Counsel for accused would submit. the
notice in question is distinguishable as there was no specific
A demand made for payment of amount covered under each
,3
1
cheque. I”\.J_c:/’ 1 f?””‘/*–i r-‘ ‘
-22
charges were also made, did not
notice. In a given case if the consolidated’lnloltiggf .
is found to provide Sufficient.~iI1Af§)’1’V1’l’1fi’tiO_I1 it
envisaged by the statutorymnrovisiion
was a specific demand
sum covered by the’llcl1equel ‘dislionoulre.d~,viumere V
fact hat it was a consolllidated notioelfaxlid/loir that
further demands in tihelstatutorily
envisaged demand~*.yerel’;.ai7sol’ to have been
made may “Qt H Same. This
position not «by the learned
coiinslely for3’the”resp~ond._ent. ._I’~Iowever, according
to ‘their resféondent, the”I’1’otice in question is not
separalolé-._in._that'”‘w’ay and that there was no
specific for payment of the
amlou_ntV..c’ove’red’: by the cheque. We have
5ijlerusedl”th–e_.cont.ents of the notice. Significantly.
_ A Vnotaonly the cheque amounts were different from
alleged loan amounts but the demand was
not of the cheque amounts but only the
ltloan amount as though it is a demand for the
loan amount and not the demand for payment of
the cheque amount, nor could it be said that it:
was a demand for payment of the cheque
amount and in addition thereto made ‘further
-mt.
23
demands as well. What is necessary
of a demand for the amount covered.
bounced cheque which is conspicv_o’usly~..absent
in the notice issued in
question is imperfect in this
had any further or addiitionalcllairns d
it did not specifically any d–eniand:for the
payment of the amount, ‘lithe non-
compliance only being the
incriminating ci–1°curr1stan.cel exposes the
drawer ll tli-«eing ” proceed ed.’ «against under
V
In pon_T”h.a11d.l, the complainant had issued
notice =..po11. accused No.l–M/s.Modi la
péartn-ership”~ firm), V” represented by its partners namely
” « No.2l–Hl(.M.I\/Iustaq and accused No.3-
‘ who had drawn cheques as partners of
accused.V.3No.1–firm in favour of i.he complainant. In
AA [paragraph 1 of the notice, there is reference to invoices and
” –dan.Les and amount for which such invoices were raised by the
complainant in the name of accused No.1. In paragraph 2 of
legal notice, there is reference i.o cheque numbers and
N. 5 – “\«\,é.’.E/ix’
24
amount for which cheques were drawn and date on which
cheques were drawn. In paragraph 2 of the legal 4no’tice.JV_there
is reference to dates on which aforestated§'”cheq:ue_si.-were
dishonoured for want of funds. In paragra;ih’~3 the
notice, accused are made know”n_of the “c.onsequ.e11ces-‘ of
dishonour of cheques andfihey havtellbeen rd’; comtjly
with the demand made in llthellllegal IVitZ\ti'(VV:’e;V’:\?\71’fl:t;’§1i11 15 days
from the date of receipt who has
been examined as DW1 notbvdenied.:’V;fe_c.eipt of legal notice.
The:i*eiore;’.:.the “étV)VVI”1’l’gl’11..V.:S.. of ddtice dated 10.02.1999 would
meetstatutory of section 138[b} of the Act.
” learned Judge of l–appellate Court having
the contention of defence while dealing with
V’ Apoeal 910.1473/2005 dated 20.12.2006 in
A(P’.”«.1″11’I}l_i”l’c’._li.:!~” Appeal l\To.1474/2005 to Criminal Appeal
x No. /2005 filed against judgment made in
uh.'”C._’C.i\Io.320.14/1999, on the same day has accepted the
defence version that there should have been separate notices
in respect of each dishonoured cheques a ._ cowrelated
I\’§V i [7->x_.x_~,£€…’
— 25
transactions to set. aside the judgment recorded l)j\I.__'[l’1€ trial
Court. in my considered opinion, the approach learned
Judge of I–appellate Court is erroneousf:’Therefoi’e1″‘–atlie
impugned judgments made… .__in
No.14’74/2005 to Criminal Appeals~l\io:i1482l/2&005=.félated
20.12.2006 cannot be sustained.
22. In View of theV_disculssion supra and in View of
concurrent findings trial Court and I-
appellate judlgrngent impL1jgnedlpj’in Criminal Revision
Peti’tion_ N ‘ not call for interference.
23._ ‘in the r’esu._1t,l’i”lpass the folIoWing:–
A ….. .. 9 ORDER
Appeal N0s.270/2007 to 278/2007′ are
.’.acceptedfj_ judgments made by the Lappellate Court in
Crixninall Appeal Nos.1474/2005 to Criminal Appeal
2 ‘No,14H82/20005 are set aside. The judgments made in
c.”c.No.32015/1999 to C.C.No.320l8/1999 and
” C.C.No.32060/l999 to C.C.No.32064/1999 restored.
3″\%.
«x. V» . ~
25
Criminal Revision Petition N0.322/2007
judgment made by the trial Coiirt in
and judgment made by Lappeliegte éfipinieai ”
No.14″/’3/2005 are confirm.ec1,_.
SNN