3 CILRP 95012088
IN THE HIGH COURT OF KARNATAKA AT BANGAI50§§'§:.
DATED was THE 0339 DAY 01:' JULY 2:395.' "
BEFORE 2V :
THE HOWBLE MRJUSTICE é;;:1§éA::f1HA;$t.3_§§§«;V "
CRIMINAL REVISION P«f1E:'_1'I'I'1. 950j.2{}08 V
BETWEEN
Mr. '1'. C. Sums}:
S/o'T. P. Kama}: «
Aged 43 years _ V
R] 3. Prop: Bread. flange V
R036. :
Mangalcjsic. T' "'§§ '- ...PE'I'ITIONER/S
(Sri. Degnpénde,
AND
V. M] Jyoyfhi Chits Pvt. Ltd.
Ad.on}i Towers
Kankanétdy Road
Rep. 'iwy its E)3'.re<:tor
Mr. S3_1Ie$h~ RESPONDENT/S
Thargnam Poojary, Adv.)
iiiii
This Crimizlal Revision Petition is filed under Secrtitm 397
83 40} Cr.P.C by the advocate for the petitioner praying that
this Hozfbie Court may be pleased in set aside the judgment of
conviction and order of sentence dated 2.7.2067 passed by the
JMFC~V Court, Mangalore in C.C.No.592/04 which is
2 CILRP 950f2€}08
oonfizmed by the order dated 12.6.08 in Crl.A.No.155j”2{}0?”–on
the file of the i Add}. Dist. as S.J., Mazlgalome. . 2 ‘ V. . »
This Cum’ m” a] Revision Petifionieozbning ”
this day, the Court, made the following: A. L ‘
The petitioner has of
his conviction for the ofienee Ponder Section 138 of
the N.}.Act u and the sentence
thereon.
21.v’i’11__e. .;e3ieva.1::1 t’ for .fi_1e purpose of this zevision are
as underz” 4′
ffhe pet:.i1joner”‘is ‘the? accused Whereas the respondent is
aviheévl the Tria}. Court. The respondent is a
the Chit Fund. Act, 3982 and the accused
joined a{s.x~ it:’_3T Member by sifiing an application on 15.8.2001
complainants Chit F’un.d Group No.A.8/ 2001. On
‘A the accused participated in the chit fund auction
received an amount of Rs.7{),O(){}/- and for the balance
subscztiption amount of Rs.68,060/ ~, he executed a Demand
Pmnnssory Note on 15.3.2002 with two on-obligants. On the
M»
3 CILRP 95Gi20€)8
same day, he executed a bond with two sureties
the amount of Rs.70,000/ -.
3. The complainant
withdrawal of the Chit Ftmd pai<i._§:he gaescfipegja .
of Rs.40,700/– and kept the of payable.
The accused promised to do so and in the cizcumstances made by the complainant, the liability of
Rs.27,300/- c ‘the said amount on
20.1 Ccroperative Bank, }{.S.
Rao ..–~Ti1e said cheque was presented
for encaghmeist ft§t1o”;1j;I1A’i?”ijé:}i’–1 Bank, Falnir Branch, Mangalore,
* but endorsement of insufiicient fimds on
circumstances, the complainant issued a
finder Section 138 of the NJ. Act to make the
‘.p_ayme’1:1t though the accused received the notice, did not
I the amount nor replied the said notice. In the
the complainant approached the Trial Court
” a complaint under Secfion 200 Cr.P.C. to take action
against the accused for the offence under Section 138 of the
Act. K
4 CILR? 95012908
4. in pursuance of the process issued, the accused
appeared before the ‘I’rial Court and after IECG1’di11gvVt}¥.1:é’,.§3ICa,
PW .1 was examined on behalf of the oomplai1ta~nt_j
documents Exs.?. 1 to P. 10 were marked. The t
accused was recorded under A’Cr.C’i.’A
the defence of total denial a1.1d .h_e
the document E3x.D.1 was
Court on appmciation oi’~the méteaeiel on._ the
petitioner for the ofience’ Juixider of the Act and
ordered to / end in default to
undergo si111.;x3A1e’v.’i:r;,;_§:i:’isoe,i_i:i_e;_1t– for a period of three months.
Aggievedtt t the sentence, the accused
approached t4ix1ee-Jonwetr afjpehate Colirt and the said appeal came
tie’. ohwtnerits. Aggrieved by the concurrent
the petitioner has approached this Court
in resfision; A
‘A V’ 4 H * r have heaxd the iearned counsel for the petitioner and
— respondent The points that arise for my considerafion
5 Cri,RP 95312008
i. Whether the judment and order of
sentence passed by the Trial Court asii
in the appeal are illegal
What order?
6. It is the contention at for the
petitioner that only an / — was due to be
paid to be paid to the 1 and therefore,
he submits convkttion under
Section 138 that a blank cheque
which by filling in the blanks
and was and thexefole, he submits
that the ‘- tt thasvsnot placed any such material on
“£eec>”rd:. t6? the fiiestzmpfion under Section 139 of the Act,
has not discharged the burden
to the: He submits that the entries in the
at Ex.D.1 reveal the payment of Rs.52,850/—- and
balance is Rs.15,15()/-. Hence, he submits that the
V’ bekow committed. an illegality in appreciating the
matexial on zecmtl and that the conv’nti4
‘? CELRP 95012608
leaving the baiance of Rs.2’7,300/-. In support of
of the complajnam, the oomplainant has pxeduceii
at Ex.P.1 and the notice at Ex.P.3 V’ ‘
Rs.70,()OO/~ the receipt has been
Ex.P.7 is the demand fhe~ L’
accused. The surety bond at Ex.P.8
and R10 is the — by the
complainant. So, is net’ this account
which has bgefi-.. {sf Rs.27,300/- is cine.
But it iethe teat the total amount of
Rs.52,35_O{–e the balance payable is only
Rs.15,15(5 he relies upon Ex.D.1, the
him, wherein the entries are made by
fine complainant chit fund. So also, it is not in
” entries are found in Ex.P.10 and on this
V VV _ of inatter, when PW. 1 was examined, nething has
: beejn e.liei:ted in the cross examination by the defence by
_ to the notice of the cempiajnant about the disparity in
VA contents of Ex.P. 10 and Ex.I).1. This could have been
V’ made clear by seeking a eiarificattion from F’W.1 during his
34,.
evidence.
9 C1’i.RP 9S0i’29(}8
into in the context of the decision neferxed to supra, I a.t:i£’*9f the
opinion that the complainant has proved the extent.
as per Ex.P.10 and the signature on the cheifiitev VV
dispute and in view’ of the pr0v1’sion:s§ eVf’Ser;ti’on bof
a presumption arises in favour A.
accused has not led satisfaeto3:f”‘ev2.b ‘deece ‘fie said’
presumption. In that of the I opinion
that on proper appmciefiefi ‘bf, on Iece-Id the
petitioner was file. I do not find.
any the Courts below.
Hence, i in pmceeclo pass the
foliowing;
Sdf-3
Jud é