- 1 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 68 OF 2013 (A) BETWEEN: L.I. NATHAN, S/O LOURDHA NATHAN, AGED ABOUT 51 YEARS, R/AT NO. 31/1, MOORE ROAD, 3RD CROSS, FRAZER TOWN, BANGALORE-560 005. …APPELLANT (BY SRI. SHIVAKUMARAPPA T.C., ADVOCATE FOR SRI. SHRIDHARA T.,ADVOCATE) AND: P.G. HIRUR S/O G M HIRUR, AGED ABOUT 58 YEARS, R/AT NO. 2137/2, GRAPE GARDEN, KAMMANAHALLI, ST. THOMAS TOWN, BANGALORE-560 085. …RESPONDENT (BY SRI. HEMANTH KUMAR J., ADVOCATE FOR SRI. AKBAR B R.,ADVOCATE) THIS CRL.A. IS FILED U/S. 378(4) CR.P.C BY THE ADV., FOR THE APPELLANT PRAYING TO SET ASIDE THE ORDER DATED:27.10.12 PASSED BY THE ADDL. S.J., P.O., FTC-III, MAYO HALL, BANGALORE IN CRL.A.NO.25224/11 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT AND CONFIRM THE ORDER DATED: 2.12.11 PASSED BY THE XIV ADDL.C.M.M., BANGALORE IN C.C.NO.82590/2009. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by REKHA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 CORAM: HON'BLE MRS JUSTICE M G UMA ORAL JUDGMENT Appellant being the complainant in C.C.No.82590/2009 on the file of the learned XIV Additional Chief Metropolitan Magistrate Bengaluru, (hereinafter referred to as 'the trial Court') has preferred this appeal being aggrieved by the judgment dated 27.10.2012 passed in Crl.A.No.25224/2011 on the file of learned Additional Sessions Judge and P.O. Fast Track Court-III Mayo Hall Unit, Bengaluru, (hereinafter referred to as 'the First Appellate Court') allowing the appeal by setting aside the judgment dated 02.12.2011 passed by the trial Court and thereby acquitting the accused for the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter referred to as 'the N.I.Act'). 2. For the sake of convenience, the parties are referred to as per their rank and status before the trial Court. - 3 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 3. Brief facts of the case are that, the appellant/complainant has filed PCR No.48139/2009 before the trial Court against the respondent alleging commission of offence punishable under Section 138 of N.I.Act. It is the contention of the complainant that he had lent an amount of Rs.1,00,000/- to the accused during February 2009 to meet his family necessities. Towards the repayment of the said amount, the accused had issued the cheque bearing No.552082, dated 05.03.2009 for Rs.1,00,000/- and promised to make necessary arrangements to honour the cheque. When the cheque was presented for encashment, the same was dishonoured as 'account closed'. Since the accused promised to make arrangements for honouring the cheque, the cheque was again represented for encashment and even on the second time, the cheque was disohoured as account closed. The legal notice was issued calling upon the accused to repay the cheque amount. Instead of repaying the cheque amount, an untenable reply was issued. Thereby the accused has committed the offence punishable under - 4 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 section 138 of N.I.Act. Accordingly, the complainant filed PCR No.48139/2009 before the trial Court. The learned Magistrate took cognizance of the offence and registered C.C.No.82590/2009. The complainant has examined himself as PW-1 and got marked Ex.P1 to P10 in support of his contention but not led any evidence in support of his defence. The accused has denied the incriminating materials available on records in his statement recorded under Section 313 of Cr.P.C. The trial Court after appreciating the materials on record, convicted the accused for the offence punishable under Section 138 of N.I.Act, holding that the complainant is successful in proving the guilt of the accused. 4. Being aggrieved by the same, the accused has preferred Crl.A.No.25224/2011 before the First Appellate Court. The First Appellate Court on re-appreciation of the materials on record, came to the conclusion that issuance of legal notice was time barred and the legal notice was defective in nature and therefore, the accused was not - 5 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 liable for conviction. Accordingly the appeal was allowed by acquitting the accused. Being aggrieved by the same, the complainant is before this Court. 5. Heard Shri Shivakumarappa T C, learned counsel for Shri Shridhara T, learned counsel for the appellant and Shri Hemanth Kumar J, learned counsel for Shri Akbar B R, learned counsel for the respondent. Perused the materials including the trial Court on record. 6. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is: “Whether the impugned judgment passed by the First Appellate Court reversing the impugned order passed by the Trial Court suffers from any infirmity or perversity, which calls for interference by this Court.?" My answer to the above point is in ‘Negative' for the following: - 6 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 REASONS: 7. It is the contention of the complainant that he had lent an amount of Rs.1,00,000/- to the accused. Towards repayment of the same, the accused has issued a cheque as per Ex.P1 for Rs.1,00,000/-. On presentation of the cheque, the same was dishonoured as account closed. Even when the same was represented, it was dishonoured with an endorsement that account closed. When legal notice was issued calling upon the accused to pay the cheque amount, an untenable reply as per Ex.P10 was issued, but the cheque amount was not repaid. Thereby, the accused has committed the offence punishable under Section 138 of N.I.Act. It is to be noticed that the accused is not denying issuance of the cheque with his signature, but however, it is specifically contended by the learned counsel for the respondent that the legal notice issued by the complainant was a defective one and it is time barred. The materials on record disclose that the cheque in question was presented for encashment on 21.03.2009. It - 7 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 was dishonoured as account closed. Instead of issuing legal notice, the complainant again represented the same cheque for encashment on 08.05.2009. Even on the second occasion, the cheque was dishonoured as account closed. It is only thereafter, the legal notice came to be issued on 27.05.2009. 8. It is the contention of the learned counsel for the complainant that since the accused has promised to make arrangements, he represented the cheque for encashment on second occasion. 9. Learned counsel the respondent placed reliance on the decision in Shri H Nanjundappa S/o Late Hanumaiah vs Sri H Hanumantharayappa,1 wherein the Coordinate Bench of this Court considering a similar contention held in para-4, as under. 4. The dishonour of a cheque on the ground of "account closed" may be technically within the meaning of legal phrase of "insufficiency of funds". But in a fact situation both are not always identical. 1 ILR 2007 KAR 2706 - 8 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 In the case of literal situation of insufficiency of funds in the account successive presentation may serve purpose. The drawer could be given opportunity to make good the funds in the account for honouring the cheque on the second presentation. But in the case of "account closed", the question of successive presentation makes no sense because the account itself is not in existence, there is no possibility of having a fruitful result by successive presentation unlike in the case of "insufficiency of funds". Therefore, whenever the cheque is dishonoured on the ground of account closed, the payee cannot resort to successive presentation to save the limitation. So also in the case of dishonour of cheque on the ground that "the signature does not tally with the specimen". 10. Even though, the learned counsel for the complainant contented that the accused has promised to make arrangement for honouring the cheque and he asked the complainant to present the cheque once again, it has no basis since at the first instance itself the cheque was dishonoured as account is already closed. Under such circumstances, the accused promising him to make necessary arrangements for honouring the cheque does - 9 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 not arise. There is no reasonable explanation for the same. Under such circumstances, the complainant could not have represented the cheque once again without issuing the legal notice on dishonour of the cheque at the first instance. 11. As per Section 138 of N.I.Act, on dishonour of the cheque, the legal notice is to be issued within 30 days. However, even though the cheque was represented on 21.03.2009 and it was dishonoured as account closed, the legal notice was issued on 27.05.2009 i.e., much after the time prescribed under law. Therefore, I find considerable force in the contention taken by the learned counsel for the respondent that the legal notice issued by the complainant is time barred. 12. Second contention raised by the learned counsel for the respondent is that, even according to PW- 1, the accused had paid Rs.15,000/- before issuance of legal notice. Under such circumstances, the complainant should have deducted the said amount, while issuing the - 10 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 legal notice, but the same is not done. On going through the evidence of PW-1, it is found that he has given candid admission that Rs.15,000/- was paid by accused before issuance of legal notice. But the same does not find a place in the legal notice issued by the complainant. PW-1 also states that after receipt of Rs.15,000/- from the accused only an amount of Rs.85,000/- was due to him, but the legal notice was issued demanding Rs.1,00,000/-. Therefore, legal notice issued by the complainant is defective. Under these circumstances, the accused is liable to be acquitted. 13. I have gone to the judgment passed by the trial Court. It has proceeded to convict the accused without taking into consideration all these aspects of the matter. However, the First Appellate Court on re-appreciation of the materials on record, acquitted the accused by assigning valid reasons. I do not find any perversity or illegality in the reasons assigned by the First Appellate Court to acquit the accused. Hence, the impugned - 11 - NC: 2025:KHC:2875 CRL.A No. 68 of 2013 judgment passed by the First Appellate Court, is liable to be upheld. Since there is no merits in the appeal preferred by the appellant, I answer for point in negative and proceed to pass the following. ORDER The Criminal Appeal is dismissed. Sd/- (M G UMA) JUDGE ASN List No.: 1 Sl No.: 21