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Judgment
Shivashankar Amarannavar, J
This appeal is filed by the complainant challenging the judgment of acquittal of the respondents dated 05.06.2013 passed in C.C. No. 493/2010 by Civil Judge and JMFC, Holenarasipura whereunder the respondents – accused have been acquitted for offence under Section 138 of the Negotiable Instruments Act (for short hereinafter referred to as `N.I. Act’).
It is the case of the appellant – complainant is that the respondents – accused had borrowed a sum of Rs.5.00 lakhs as loan from the complainant on 30.04.2009. Said amount was paid by the complainant to the accused – Company through its Directors. The accused - Company had issued a cheque of M/s. RVNS Exim Private Limited bearing No. 564198 drawn on Indian Bank, M.G. Road, Bangalore, dated 30.04.2010. Said cheque on presentment came to dishonoured for reason `Account Closed’ on 07.05.2010. The complainant got issued legal notice. Registered post sent to first accused was returned with shara `left the place’ and notice sent to the address of Doddaballapura returned as the accused had died on 03.06.2010. As the cheuqe amount is not repaid, the complainant filed a private complaint against the respondents. The trial Court after recording the sworn statement has taken cognizance and registered C.C. No. 493/2010 against the accused persons for offence under Section 138 of the N.I. Act.
The appellant – complainant in order to prove his case examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.12. Statement of the accused persons came to be recorded under Section 313 of Cr.P.C. The accused did not lead any defence evidence. The trial Court after hearing arguments on both sides formulated points for consideration and passed the impugned judgment of acquittal. Said judgment of acquittal has been challenged by the complainant in this appeal.
Heard learned counsel for the appellant and learned counsel for respondents on admission.
Learned counsel for appellant would contend that S. Srinivasa Murthy and B. Prashanth, as Directors of Hotman Builders Private Limited, borrowed Rs.5.00 lakhs from the complainant and for making repayment of the same, issued cheque – Ex.P.1 drawn on the account of M/s. RVNS Exim Private Limited and the same came to be dishonoured as `account closed’. Said two persons have issued the said cheque for repayment of the amount borrowed and they are the Directors of both M/s. RVNS Exim Private Limited and Hotman Builders Private Limited. She contends that the accused persons have not denied their signature on the cheque – Ex.P.1. As the signature on the cheque is admitted, a presumption is to be drawn under Section 139 of the N.I. Act that the cheque is issued for making payment of legally enforceable debt/liability. Without considering these aspects learned Magistrate has erred in acquitting the respondents for offence under Section 138 of the N.I. Act.
Learned counsel for respondent would contend that drawer of Ex.P.1 – cheque is M/s. RVNS Exim Private Limited and it is signed by two Directors of the said Company. Said M/s. RVNS Exim Private Limited - drawer of Ex.P.1 has not been arraigned as an accused. One Hotman Builders Private Limited represented by its Directors has been arraigned as accused. Said Hotman Builders Private Limited is not the drawer of the cheque and therefore, offence under Section 138 of the N.I. Act is not attracted against the Directors of Hotman Builders Private Limited. Considering the said aspect the learned Magistrate has rightly acquitted the respondents for offence under Section 138 of the N.I. Act.
Having heard the learned counsel for the parties this Court has perused the impugned judgment of acquittal and the trial Court records.
Cheque – Ex.P.1 is drawn on the account of M/s. RVNS Exim Private Limited. The drawer of the cheque is M/s. RVNS Exim Private Limited. Cheque - Ex.P.1 is signed by two Directors of M/s. RVNS Exim Private Limited. Said M/s. RVNS Exim Private Limited has not been arraigned as an accused, instead Hotman Builders Private Limited has been arraigned as an accused. Said Hotman Builders Private Limited is not the drawer of the cheque – Ex.P.1. As Hotman Builders Private Limited is not the drawer of the cheque – Ex.P.1 it cannot be prosecuted for offence under Section 138 of the N.I. Act for dishonour of the cheque of M/s. RVNS Exim Private Limited. Hotman Builders Private Limited and M/s. RVNS Exim Private Limited are two different companies. Even though the Directors of both the companies are same, cheque – Ex.P.1 has been drawn on the account of M/s. RVNS Exim Private Limited. Considering the said aspect, Hotman Builders Private Limited has not committed any offence punishable under Section 138 of N.I. Act. Considering the said aspect the trial Court has rightly acquitted the respondents. There are no grounds for admitting the appeal. Hence, the appeal is dismissed.