Karnataka High Court: John Michael Cunha J., allowed the appeal and sets aside the impugned order.
The case involves default under Section 138 Negotiable Instruments Act, 1881 for the discharge of hand loan of Rs 5,00,000 by the petitioner. The notice was issued by the appellant/ complainant demanding the payment of the cheque amount, which went unreplied by the respondent. In the course of the trial, evidence was produced like the original cheque, the dishonour memo and the refused postal cover in proof of service of the demand notice on the respondent. Trial Court found respondent guilty of the offence under Section 138 of NI Act, 1881 and sentenced him to pay fine. The Respondent filed an appeal being aggrieved by the said order which was reversed observing that no opportunity was provided to the respondent to present his case and hence the matter was remanded back top the Trial Court. The accused yet not produce about defence evidence nor did he controvert the evidence produced by the complainant. The Trial Court, this time acquitted the respondent on the ground that the complainant has not examined the concerned bank manager in proof of the endorsement given by him regarding the “payment stopped by the drawer”.
Counsel for the appellants submitted that the reasoning assigned by the Trial Court is completely perverse and irrelevant.
The Court observed that the complainant had initiated action for the offence of dishonor of cheque the Trial Court was only required to consider the proof of the ingredients of the offence namely the issuance of cheque by the respondent towards the discharge of the legally enforceable debt and the consequent dishonour thereof. It was further observed that it is not in dispute that the evidence given by him regarding the transaction as well as the dishonour of the cheque has remained uncontroverted and under the said circumstance, the complainant was not required to examine the banker to prove the endorsement issued by him.
In view of the above, the appeal was allowed and the impugned order was set aside.[M. Narayanaswamy v. Nagaraj N.S., 2020 SCC OnLine Kar 2013, decided on 11-12-2020]
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