1 CRLKA. ?«f38I20{}3
IN THE HIGH COURT OF KARNATAKA, BIKNGALQREE
DATEE) THES THE 22"" SAY OF A?RIL 2009
BEFORE '
THE HONBLE MR. JUSTICE ARALZ '%;_
CRL.A. HO. 74-8 01''' 2003
BETWEEH
Sri. K.Keshava Kumar,
S/0. Sri. ».}ayaram Raddy,
Aged about 40 years,
Residing at No. 1578,
5*-h cross 'E' Block,
Rajajinagar, 3 '4 V
Bangaiore-560 010 .;;. .% _ g x * APPELLANT.
AND:
, _ Sri. .Q;.K. Umasha:11;ar,é,
. V " 'S [ oV'.'L{':c5pa1a1§ziSHan,
Majar, Re$id¢f:t.__at No. 9,
A '-£}V0i_{11}" Kempana Lane,
C;T.€-Mreet -Grass,
Banga1ore»5€so 002. RESPONDENT
T (Ey…A€V3I*i:H.N.Si1asI3idhar for Kesvy & ()0. Adv.)
‘ 3<;*2:;1s Crl. Appeal filed u/s. 378(4) Cr.P.C. prayifig
togrevcrse the order datccl 24.02.2903 passed by the
–I>{-‘Jth Acid}. C.M.M. Bangalore in C.C.No.21612/98,
V acquitténg the mspondsntwaccuscd fer the offence
” P/U/S. 138 of the N.i.Act.
“””‘r”v-“WK.—-u
2 C3,:-,;;\_.:4a:2oo3
JUDGMENT , C7
The complainant in CCA1NaJ2 }it:3i~2f9″8-I631’v1:,§:;:.,§I%iie
the lcaxngd 15¢ ACM’M._,_ gaixgam 1
[hereinafter referred to short] has
challenged the of Hatgqtlittal dated
24.2.2003 a}_:)vas:-mid” acquitting the
under Section 138
of _1;h1é: Act [hereirlafter referred
” I_héu_Ié the arguments of Sri Ramaswamy,
Cv.(§tiI1S§:_]_._’f;)£’ the appellant -~ complainant and Sri
., learned counsel for the respondent —
” perusctd the impugzed judgment and crder
‘c;f and also the entire material on the original
2 ” VT ‘recénrds obtained from the Triai Court.
3. The case of the complainant [hereinafter, the
parties are referred to as per their ranks in the Trial
r
5 CRL;%.:748f20fi3
5. The ieazmed counsel for the appenaxjm
contended that the Trial Court committegi
in acqxlitting the accused on ; a
notice in respect of dishonoufof
was not served on him. the
Trial Court committee Aheléitilg that the
complainant had no said amount to
the accusevsiqdespitef the £101; disputing his
sigigature He further urged that the
Trial raised the presumption under
139- ‘ NI Act and thereby held that the
f to prove his defence that the said cheque
2 ._ by him towards discharge of legally
e nfoir9ei9[o1e debt but the same was gven to one
.. AA ‘(–.-“ianéadhar, the employer of the accused.
6. Per contra, the ieamed counsel for the
respondent accused strongly contended that no
acceptabie material is produced on recerd by the
r’–J”‘—“‘\…..-./
5 cmgfiawzws
complainant to substantiate his aHegg¥,stiot1.: as»
compiaint that he issued the” statutory ftioticeetdagttedt AV
10.8. 1988 to the accused aitd, lattet
same on 14.8.1988 V.
complainant along sndvvtsought for
15 days time for ittfte amount under
the said that the
titxder one Gangadhar on a
motitifijf s.t§151;gz’y;;io1″ only could not have the
capetcit$z’«to 1e:[;;€i»’:.jVt.toe’s:s.ici’*11eavy amount of Rs.3 lakhs as
ailegeei theeompiaint. He aiso contended that
. V’ itis stateéitirl vague terms in the complaint that
lent the said amount; about two years
Apr_iorV___vte.;S’.$.1998 he has not produced any acceptable
AA taatertal on record to substantiate that he actually ient
A’ the said amount to the accused on any specific date.
While contending so, he further submitted that the
complainant failed to discharge the burden of
proving the existence of the legally enforceable debt as
f”%%_
7 CRL.A.?48f20G3
on the date of the cheque in question. And as aiich, the
Trial Court was quite justified in acqmtm1g..theV.a_e:z1eed.
T. On careful readirlgeof the ;a\?er’etjeeteV .
complaint, it couid be seen *as:’to° ‘
statratory notice, the avehaietats of ttieu are
at para No.7 of t11e_.co11:1p1ai?i:t,-.\#;r;’a_ez’eiIi’it.is.–atated that
the complainant was the 1%! notice
dated 10.8._19§8_ isggiied’ ca1’Ii1}g upon him
to repay.’ amount under the said cheque,
as retiiaited 01′ the NI Act and the
said :1otiee”w:_a;”sj’ seat to the accused through RPAD and
~t.az;d;%§€t&pera1icate of posang on 12.8.1998 and also sent
ceurier service on 13.8.1998. It is further
up’
aveneci para _No.8 therein that the said notice was
* served. en the accused on 14.8.1998 and therefore, on
said date, he approached the complainant along
with the said notice and requested him to yam’: time for
8 CRL.A.’.?48/2093
15 days for making payment of the entire amount under
the said cheque.
8. The compiainant: has stated in
FWI, that a legal nctice datccfif cc1o.3.§%1§9s%c ViV:s8’iueéi..«tc’ u
the accused ané the same 1
RPM) and it was serve-Vd the’
said notice the accfugcd of the
cheque anti thcrcfcrc-,-‘ filed the said
corfiplaiht; deposed in his examination»
in–cI1ic:t’«–.giateci that $2.133 is the copy of the
__j r:awfl;ice,” is the ccurier receipt, n’.x.P5 is the
‘ jpafitajficlgriowlcdgemcnt and Ex.P6 is the certificate of
.7 ‘j_ Vhis further examination-in-chief I’6COI’df’:d on
data. 11.9.2001, this PW1 csmpiaixmnt has stated that
” , notice was sent to the accused before the cheque
was rammed by the Bank cgfifer its dishoncmr and Ex.P7
notice was sent to him after the cheque was returned by
the Bank.
9 CRL.A’.”‘.?§r8f2(X33
9. From the above evidence of the 4_
is clear that Ex.P4 eo’u1’ier”” receigit, ;
acknowledgement and
pertains to issue of to
the complainant, L. ‘eariier to the
presenting of cheque Bank and E}{.P7
is the copy tine to the accused
after the bounced. But the
any further material to
shots %. sent to the accused either
..orA’urV1Aéi.er Certificate of Posting or Courier
.._On fi’ie ot11er hand, PW1 complainant has
cross examination that except Ex.P3
A notigte, not send to the accused any other notice.
AA ; so, the Trial Court has rightly recorded its
V’ that the complainant failed to establish the fact
that the statutory notice was served on the accused as
averred by him in his complaint.
r~……./”””””¥*”‘\_,,.»-
I 1 CRL.A.’?48f2003
the ‘Trial Court has rightiy held in the iz:q_pug1ed
judment that the eompiainant had me:
capacity to lend the said heavy amount ei’
the accused. As laid dewnv.:by.the 1.
Court in the ease of ”
Dattatraya G. Hegde “swam
COURT 1325 -.= 2003(5) “i’-he pfesmnfition under
Section 139 of V% Ni ” extent to the
exis§ten_c_eA’ enforceable debt as on the date
of the ._eheqi1e,;V %ei11fi_4i”é._’:Le3iiends only to the fact that the
e3;1eq11e eras, _iS’s’i1et3. by the accused to the complainant
“discharge of legaliy enforeiable debt and
._ factum of existence of such debt is to be
the compiahmnt beyond reasonable doubt as
* se faefi; On careful reaiiing of the evidence of WV 1, it is
“Clear that the complainant failed to preve the existence
T of the legaliy enforceaable debt as on the date of the
cheque in question.
r____{‘\….—–“\.?
12 CRL.A.748J2{}f)3
1 1. The defence of the accused is :’
dealm’ gs with one Gangadhar, and ‘d
given sig1ed hiank cheques <3, ;
Gangadhar misused one of ‘die
me complainant, who m
complainant has ad.;p.itted”‘§di_:s.evidefice he has
been serving and he
(Gangadharfihad case against the
accused. resgsect’-oi’–an’other”eheque said to have been
issded ‘hzi V_f<)'1' a sum of Rs.23 lakhs.
$.12.' ., ed counsel for the appellant
'V 'A " an t steongly contended that the accused did
._ get the said Gangadhar examined to
's11bs§:s11'tiate his defence that the said cheque was given
" «£9 without fail)" 'mg the blanks and the said
"Gsngadhar misused the same through the complainant.
T In View of the undisputed fact that the complainant had
been working under the said Crangadhar since the past
(…..___,_,-Z'—–'-xat
13 CRL.A.'T48.?'2GG3
18 to 20 years, it was easy for the 'trfget '_
him (Gangadhar) examined for ; x
net receive any blank signed ~.+:.he
and the cheque in questio11:.i;vas eot.give1_*1, 4h im'" ' by the
said Gangadhar. . the feferred to
supra, the Hoifble CotiijI:e t:.as iaid down at
para 23 as
_V fife' the burden of
" fiimilnder a statute need not
-He’ may discharge his burden on
t:h4e- Vfimaterials already brought on
— .. LA -‘An “aeeused has a constitutional right to
Standard of proof on the part of
w.a;1.4v:”accueed and that of the prosecution 111 a
TA case is different.”
It’ie__ furti’1er laid down in the said decision at para 25
H * .b_f<.'A1.AT1E':ti',:
“if the complainant has to prove his case beyond
reasonahie doubt, the accused couid not be
required to prove his defence with the eame
‘?”
14 CRL.A.’?48/2903
degree, but it is sufiicient if he proves l”1iS ‘fi’!3ft3I”1Ct3
version by preponderance of probabiiiitittié;
13. in View of the fact: that the £:1ici*
not have capacity to lend thekiccs .; i AV
amount and the complainant ¥.:o efitabfivsh ‘9£:’}. 1&e’1t: i*1:=,rL
ient the said amount on of
year, “due defence :.f¢r$ioI§’V’§$i”‘ he had
given blank signed cheE;_j_J<§ 't£3'Vtt1e Zsiéj;:i__"Gangacihar, who
is néxze 'employer of the conzpiaiilant, and
the the same through the
" to be plausible and acceptable.
»' version is further strengthened by the fact
'– fizat Gangadhar had filed a case against the
étlleging that the accused had given him' a
" Chgqfie for RS323 lakhs and same came to be
'' E compromised.
14. For the reasons aforesaid, I do not find any
reasons to take a dgferent view than the one taken by
(‘–…._/”””-~«-….—“‘~…….–v’
15 CRL,R.7=%§i2GO3
the Trial Court and therefore, the
deserves to be dismissed as béir¢g« ae%mfi[jq,+-
Aocoriiingly, it is dismisseci, _No (331163 as tfiiiifists;