IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 20"' day of Octeber, 2010 Before THE HON'BLE MR JUSTICE HULUVADI G_.R/451533 3 Criminal Appeals 612/2008 c/w 613, 014,00/$15, 1519,_6.17,.. and 616/T2008 ' Between: V M/s Marathi Finance _ By its GPA Holder ~» N G Mahr.is'ii~..« 33 yrs, S/0 Gurudevaru - , .. Off: # 27, Obbaiah Lane _ 1 " v giommon Akkipet, Bangalore 560/053 * " 1 "Appellant (By Nag Asstsu, ' " And: In Cr}./A 612/20080; A610/8/2000* /0 ' Smt T La}<:§3hn1i'W/c) I/it'e'-Dvfippai *VBu.§in<n:s.s"at: Bhawani Wines BangaVl0.re 9 " V R/a # 'E4/'.?.»,7.I'" ax'/ram, 2'" Cross Tank Band' Road, 'N€'2..r'_H0te1 Amar V 'Sr.irampu-mm Bangalore 560 02.1 Respondent
0′ i.”,l”i2._V(v}rln.A 613/2508: 614/2008; 615/2008;
gm/2003/’;./.517/2008; 619/2008
Kumar S/0 3-ate D Gopal
0 at: M/S Bhawani Wines
Affzznk Bund Road, Near H0162} Amar
0*”
Bangalore 9
R/a # 14/2, 1″ Main, 2″” Cross
Srirampuram, Bangalore 560 021 Respondent
(By Sri N Jagadeesh Baliga, Adv.)
Appeals are filed under 3378(4) of the Code of Crivrni-nal
Procedure praying to set aside the judgment dated 22.4.2QQ8:
18049/2005; cc 18050/2005; cc 1805}/2005; cc 18O52!2OQ5′;§’j€C”—–1A3
18053/2005; cc 18054/2005; cc 18055/2005 and CC-~l~805@1/2065«l>y*_:u ~. ”
the XIII Addl. CMM, Bangalore
The Appeals coming on for Hearing thisiday; Courtvdeliyeredllthel
following:
These appeals the order of acquittal
passed bypithe :5tddl’.:CMl\”,E,«Bangalore in CC 18049/2005; CC
ljigéfio/2QVt)’s’Zl *1l’8p05ij1~,in£ly and have borrowed a total amount of Rs.l9,00,000/~
to pay interest at the rate of 21% pa. The amount was
332″‘
borrowed on 27.5.2003 and 28.5.2003. Apart from issuance tjiithe
cheques towards the amount borrowed, accused also
demand promissory notes. In all, about 8 cheques_were,issued’ for”
having borrowed the amount. Out of the cheques p_resen1ted;,_twotwwiere
returned with an endorsement ‘account clo;~;ed’= and itherest were
dishonoured for insufficient funds. trial coI.1rt”afterg inquiry.
accepting the version of the accused, di’smissed._al.1_tl1e complaints against
which, these appeals are preferred._:’ _ b V _
Heard the cou_nse1a_repres§entingithe-.’part_ies.’ V
According toiithie appellaritistvccuncsei, as admitted by the accused
themselves, the ~accused’=hadrAtranisacitions with the complainant and used
to borrowgarhount for reuewalof Excise License and also as and when
in Zrieediijoflmoiaey. Admittedly, they have borrowed Rs.5 to 6
crores_fro_m t”rre”eo1r;pla’i’nztut and they have repaid the same. in so far as
these triansac_1’ior1s*”i are concerned, when the cheques issued were
“presented forrealization, the same were dishonored. The contention of
the accused that the earlier cheques issued have been misused, is totally
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false. Rather, the coniptainant has produced the dishonored cheques and,
apart from that, in support of the money borrowed by the accuscd,”*the
complainant has produced the on demand promissory notes ese-C_ute__d Vilyb’
the accused. However, by an erroneous reasoning, the trialpic-ourt_irely1n.,g’ ~
upon M S Narayana Manon Vs State of Kertzla __- ht’
39, has dismissed the complaints on th’e.4ground._thet the account bdolis
have not been produced and accordingiliyss” tried to-draw an, adverse
inference.
by them thefthere .was.’a_t’ra’nsact.ion.,and promptly from time to time, the
amount has been. paid. But”;haviitgrcollected the cheques issued earlier
in respectéof “different’transactions prior to 2001 which cheques have not
beer1,’returned:’i1ack the accused, the complainant has misused the same
ar1d,1″:h_er’eppisenforceable debt. Rightly, the trial court has
dismissed’–t.he V-_comp’lair1ts which does not call for interference. It is aiso
” argurnentvlthztt there was no necessity for the accused to borrow the
amou’nt iinpiecewmeal and to issue Cheques for different amount and they
c_ou’rd’hzive borrowed the entire amount in a single transaction.
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It is the contention of the counsel representing the respondents
that in Ex.Dl series ~ cheques, there is signature of the agent
complainant and it is a bearer cheque. it is h.is argument thatgthe”
year commences from July and there was no necessity ‘for.,tVhe..accii’sed to’ ”
borrow the amount during the month of Mays
As per the ratio laid down bypthe A’pes”–Courti’in.yi.tl1e
Rangappa Vs Mohan ~ AIR 2010 SC-11898, the. in’it.ia_ilg ;§”rt§§’Li1a;5tion
always is in favour of the cozriplainapntiiiiandialso as legally
enforceable debt. It is for the acctliseditoii dispro:/:’5″tthe_. presumption or
rebut the presu1nptionKnVo.t_ionlyaby-probable explanation but, proof of
explanation has tobe offered,” _ V” L
What is noticedgir: the present cases is, several on demand
I-‘:pro_missory’ notes also have”‘be’en produced by the complainant apart from
the’ chiegues said to be dishonoured. Et is not in dispute that
” *.there were transaetgoins between the complainant and the accused since.
‘l Mere.Vs_iignature of the agent on the back side of the bearer cheque
i ‘bybitpself not indicate that the amount has been received by the
ta”
complainant himself or through his agent when once the arnount”–h2is
been paid throtigh cheques. Apart from that, on demandy..prorni_ssé§~ry”
notes executed are of the year 2003-04. Even the
payment being made is said to be during the East or Muighit
the amount must have been drawn ‘early to’c_leposi.t thei..amoun€’: for
renewal of the Excise License. The exiplianation accused
cannot be accepted. The the_V_y.’ea1<.2O04riAiThere was a
transaction between the._complainan_t–.and_0 'acciused…throughout. The
complainant lender cheques apart from
on demand inttsupport of his case. The
execution of the on de:33and<prorni'ssory notes is also not in dispute.
in the regular"co_urse of business if the cheques were received by
"the,ce.mplair1ant_f:om the accused towards security, as and when
payiiaehts.wVere'p..made;""the accused could have demanded for return of
those cheques.' The explanation offered by the accused though appears
' pro_bab'l"e, but proof of explanation has not been produced to deny
the of the complainant. in the circumstances, the trial court relying
" the judgment of this Court in Narayana Memm's case, tried to
discard the case of the complainant even though the complainant was
able to produce the dishonored cheques and also the on
promissory notes executed by the accused. It is also not tnade hyr
the accused, if at all they had insisted for one payrrrea.t.:':inis–tead of"
different payments in different sums, that ithere…w.as no nieces'sity__ for .i
them to execute several on demand no-t:es..__ The reasoning eassigned by; the
triai court appears to be unjust.
Further, it appears there sorne to the quantum of
amount paid. According to the ithey,__i_lmade. the entire
payment oni’:daily.basi.s, ..s_A«ccordi1ig to the complainant, apart from the
cheques issued,»._there isv.also”o_n”deniand promissory notes executed by
the accusedheing supyportingdocurnents. At this stage, the accused is
irtakingydiffierent _stand and unnecessarily the proceedings are being
araigaewi.
lilo enableffiie complainant as weil as the accused to produce
~ «fj;-frelevant rnaterial documents, impugned orders are set aside. Matter is
“-reniitted the trial court for disposal of the same in accordance with
5.
law, within three months from the date of receipt of the dfder.
Meanwhile, accused to deposit an amount of Rs.1(} lakhs before. .’t«i1«43’__’t’19§.jz:1VV”
court within four weeks. The amount deposited would _be,§§uhjeeAt:’to’_t}2e ‘ ”
result of the cases before the trial court.
Appeals are allowed.