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Judgment
A.N. Venugopal Gowda, J.—1. In C.C. No. 8440/2013, the XXI Additional Chief Metropolitan Magistrate, Bengaluru having passed a judgment dated 20.12.2014 and acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ''the Act''), feeling aggrieved the complainant filed this appeal.
In order to appreciate the controversy, a few material facts may be stated thus:
"The appellant/complainant being one of the partners, M/s. Rajashree Promoters (R) had entered into a memorandum of understanding on 14.12.2009 (Ex. P-18) with the respondents, in the matter of development of land and creation of layouts. The partnership firm - M/s. Rajashree Promoters paid Rs. 15,00,000/- as advance at the time of entering into the said memorandum of understanding. The respondents having not performed their part, in part settlement of the amount paid pursuant to Ex. P-18, paid Rs. 4,25,000/-, under a cheque bearing No. 702888 dated 11.12.2010, drawn on Canara Bank, Bidadi Branch, in favour of the appellant. The said cheque having been returned by the Bank on 11.12.2010 with endorsement "no sufficient funds" and the said endorsement having been received on 18.12.2010, a notice (Ex. P-3) demanding payment of the cheque amount was issued on 05.01.2011. The payment having not been made, a private complaint under Section 200 Cr.P.C, registered as PCR No. 4606/2011, was presented before the learned Magistrate on 25.02.2011. Complainant got himself examined as PW.1 on 31.05.2013. Cognizance of the offence under Section 138 of N.I. Act having been taken as per order dated 31.05.2013, C.C. No. 8440/2013 was registered and process was issued. All the accused having put in appearance, notice of the accusation was given to them and they pleaded not guilty and claimed to be tried. The complainant got himself examined as PW.1 and marked 17 documents. Accused No. 3 got himself examined as DW.1 and marked one document. Having regard to the rival contentions and by finding that the dishonoured cheque, marked as Ex. P-1, has been altered from "02" to "12" and thus, the instrument has become invalid and also that the complainant has not made out the ingredients of Section 138 of the Act and that there exists no statutory presumption in favour of the cheque (Ex. P-1), the aforesaid judgment dated 20.12.2014 was passed and the accused were acquitted of the charged offence."
Sri S. Vasanth Madhav, learned advocate, contended that the learned Trial Judge has committed error in passing the judgment of acquittal. He submitted that the accused having not got the cheque referred to an expert for opinion with regard to the alleged tampering/material alteration of the month appearing in the cheque, the finding recorded is perverse. Learned counsel submitted that the case of the complainant having not been correctly appreciated, the impugned judgment calls for interference.
Sri R. Nataraj, learned advocate appearing for respondent Nos. 2 and 3, on the other hand submitted that the complaint is not maintainable as the ingredients of Section 138 of the Act is not fulfilled. Learned counsel submitted that the payment in terms of Ex. P-18 having been allegedly made by the partnership firm and not the complainant in his individual capacity and that there being no legally recoverable debt or other liability, the complaint has rightly been dismissed. Learned counsel submitted that the case of the complainant being inconsistent, learned Magistrate is justified in acquitting the accused. Learned counsel took me through the record of the case and submitted that not only for the reasons assigned in the impugned judgment, but for other reasons, the impugned judgment of acquittal does not warrant interference. Learned counsel made submissions in support of the conclusion arrived at by the learned Trial Judge.
Perused the record and considered the rival contentions. Point for consideration is, whether the learned Trial Judge is justified in acquitting the accused for the offence punishable under Section 138 of N.I. Act?
To fasten criminal liability under Section 138 of the Act, the necessary ingredients of the Section are required to be satisfied. To constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled.
"(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
Ex. P-18 is the memorandum of understanding dated 14.12.2009 between M/s. Rajashree Promoters (R) and the respondents. The parties therein having entered into an understanding, Rs. 15,00,000/- was paid as advance. According to Ex. P-3, the demand notice, the terms of the Memorandum of Understanding having not been completed by the respondents, in part settlement of the outstanding amount of Rs. 14,00,000/-, cheque vide Ex. P-1 was issued in favour of the complainant and when the cheque was returned as per Ex. P-2, on account of "insufficient funds", after issuance of the notice vide Ex. P-3, the complaint was filed.
The complainant while deposing on 31.05.2013, as PW.1, has stated that he paid Rs. 14,00,000/-towards the sale of a developed site and when he sought refund, the cheque in question was issued. Sri Vasanth Madhav, conceded that the complainant has not made the payment individually. It is clear from Ex. P-18, that the payment was made by the partnership firm, in which the complainant was only a partner. The version of PW.1, on 31.05.2013, is different from the contents of Ex. P-3 and the complaint. There is not even a whisper with regard to the partnership firm having made the payment and refund of Rs. 4,25,000/- having been made in favour of one of its partners. In the cross-examination dated 11.06.2014, PW.1 has stated that he is a partner of M/s. Rajashree Promoters, which has two partners and both partners have got equal rights and that the payment of Rs. 14,00,000/- was made and the Memorandum of Understanding was executed. According to him, the Memorandum of Understanding has not been cancelled. The cheque delivered at the time of entering into the MOU is Ex. D-1. He has stated that the other partner Mr. Jayanath is with him and he would be deposing in the matter.
Indisputably, the dishonoured cheque Ex. P-1 was not been issued for the discharge, in whole or in part, or for any debt or other liability, inasmuch as the complainant has not made the payment in pursuance of Ex. P-18. The payment made pursuant to Ex. P-18 was as per the cheque Ex. D-1 and the same has remained unencashed. Thus, it is clear that the claim made as per Ex. P-3 was not towards a legally recoverable debt or other liability. Even otherwise, the claim, if any, ought to have been made by M/s. Rajashree Promoters, the partnership firm and not the complainant alone and that too in his individual capacity.
In the said view of the mater, the complaint being not maintainable, it is unnecessary to record any finding with regard to the merit or otherwise of the finding recorded by the learned Trial Judge i.e., with regard to the material alteration of Ex. P-1 and the instrument being invalid.
Since the appellant, as the complainant, has not alleged and established that the cheque Ex. P-1 was issued towards discharge of debt or other liability by the accused, the ingredients of Section 138 of the Act, which are cumulative has not been proved, learned Trial Judge is justified in passing the judgment of acquittal.
In the result, the appeal being devoid of merit is dismissed.