S R NAGARAJ AND COMPANY ARASIKERE TOWN HASSAN DISTRICT Vs. SRI GANESH OIL MILL HAVERI DHARWAD DISTRICT

JUDGEMENT

(1.) This appeal is filed by the complainant in CC. No. 354 of 1995 on the file of the Prl. Civil Judge (Jr. Dv.) and JMFC, Arasikere, against the order of acquittal of the respondent accused in respect of the offence under Section 138 of the Negotiable Instruments Act (for short, the 'Act').

(2.) The appellant has filed a complaint against the respondent in the Trial Court for the offence under Section 138 of the Act, alleging that its firm was dealing in business of sunflower seeds in RMC Yard, Arasikere and the respondent has purchased the sunflower seeds from the appellant's firm and towards payment of the amount of the bill respondent has issued two cheques, one bearing No. 573356 dated 1-4-1995 for Rs. 1,50,000/- and another Cheque No. 573355 dated 6-4-1995 for Rs. 1 lakh in favour of the appellant, drawn on Vijaya Bank, Haveri Branch. When the appellant presented the above said two cheques for encashment through its banker Syndicate Bank, Arasikere Branch, those two cheques were returned dishonoured with an endorsement as 'funds insufficient'. Thereafter, appellant got issued notice to the respondent intimating him about the dishonour of the said two cheques and demanding him to pay the amount of those two cheques within 15 days from the date of receipt of the said notice, failing which the accused would be proceeded against for the offence under Section 138 of the Act. Since the respondent has not complied with the demand made in the said notice and has not even replied to the said notice, the appellant filed the complaint in the Trial Court. The Trial Court has taken cognizance of the offence in the complaint of the appellant, recorded the sworn statement of the appellant and thereafter, secured the presence of the respondent-accused on issuing summons. The accused was examined under Section 251 of the Cr. P.C. by explaining the substance of the accusation against him. Accused pleaded not guilty and claimed to be tried. Thereafter, the Trial Court recorded the evidence adduced by the appellant and his two other witnesses and marked 19 documents produced in support of the case. Thereafter, the statement of the respondent-accused was also recorded. On appreciation of the evidence adduced by both parties, the Trial Court came to the conclusion that, in respect of the amount due for the purchase of sunflower seeds from the appellant, the respondent accused issued two cheques, one for Rs. 1,50,000/- and another cheque for Rs. 1,00,000 dated 1-4-1995 and 6-4-1995 respectively and that the said two cheques were dishonoured for want of sufficient funds when they were presented for collection by the bankers of the complainant and that the accused failed to pay the said amount within 15 days from the date of receipt of the said notice, on intimation of the dishonour of the cheques issued to him. The Trial Court also found that the notice issued by the complainant is in order and there is compliance with the requirement of service of the notice as required under the provisions of Section 138(b) and (c) of the Act. However, the Trial Court came to the conclusion that the complaint filed is not maintainable since the complainant has not taken permission from the Market Committee, APMC Yard as required under the provisions of Section 84(4) of the Karnataka APM (Regulation) Act, 1966, before filing the complaint. The Trial Court therefore acquitted the accused on the said ground in respect of the offence under Section 138 of the Act. The complainant therefore filed the present appeal.

(3.) I have heard the arguments advanced by the learned Counsel for the appellant-complainant. The accused engaged a Counsel and when the matter came up for the final hearing, his Counsel filed a memo of retirement. Thereafter, the accused appeared in person before this Court on 9-8-1999 and requested for time to engage another Counsel. Accordingly, time was granted to him till 20-8-1999. Again on 20-8-1999 since the accused remained absent, the case was adjourned finally to 3-9-1999. On 3-9-1999 also the respondent-accused remained absent and nobody filed vakalath on his behalf. On that day, arguments of the learned Counsel for the appellant were heard and the matter was finally posted to today for the reply arguments of the respondent-accused. Even today the accused remained absent and remained unrepresented. Learned Counsel for the appellant concluded his arguments.