._ it "T,A';Vai§1'daraj«,
' ' A ged Tahout" yczars,
Re~sidings'atV»_9/9"A.;" Mm Cross,
IN THE HIGH COURT OF KARNATAKA AT ht
BANGALORE
DATED THIS THE 24" DAY OF sEPTEMB_EEt'zn1eet,r T
BEFORE it
THE HON'BLE MRJUSTICE HU_LLWiAT1t)iI_,(§i.RAMESH T
QRIMINAL APPE;AiI_g«N0.i606i 2m.: s I
BETWEEN:
Smt.{).K.Ka1a,
D/0 late D.Kri_shna_murthy,._ it
Aged about 30 _years;_
Residing atN_o7.,11(_i?l'lB, 1:
10111 Main, 62*" Céii;ss;'."i--»._ ,
Prakashv Negarr, "
Banga1t)re~2'_1s'.= _
(By
Prjkash Nagy,"
Banga10Vre»2'i'.
..APPELLANT
..RESPONDENT
This Criminai Appeai is fiied under Section 378(4) of
~ C1′.P.C. praying to set aside the judgment and order of acquittai
____dt.7.1.2OE0 in C.C.N0.4874/2008 passed by the learned XIII
Addl. CMM., Bangalore — aequitting the respondent/accused
for the offence P/U/S.138 of N.I.Act.
PJ
This Criminal Appeal coming on for final disposal this
day, the Court delivered the following:
,[ UDGMENT
This appeal is against the order ollthe XE} i
Bangalore, in C.C.No.4874/2008 dated 7.::l~.?,,Oii(ii.dismis’sing_i__Vthe.i
complaint and acquitting the
2. According to ‘had advanced an
amount of instalments, i.e.,
Rs. 1 ,50,0007-it and Rs. 1 , 10,000/– during
and reconstruction of a
single room the accused had offered to the
comggiainant on lease, when the complainant was in search of
i misc, «after renovation of the house, the accused neither
hahded”oiV_er_ th;e’j)ossession of the house nor repaid the amount
on’-uderriand, the accused had issued three post dated
cheques” drawn. on Centurion Bank, Cambridge Road, Ulsoor,
Bangalore. When the cheques were presented for encashment,
they were returned with an endorsement ‘funds insufficient’ and
Jig”
once again when the complainant asked the accused, he having
tendered apology, requested her to re–present the cheqvueisfanpd
all the three cheques were presented and once.
cheques came to be returned _fo1i__ ins_ufficieiitVfundse
Accordingly, after issuance of legal r1oti(:e,’*corr1p1aint
be filed. The triallCourt hasadisrnissed.__the._c’orn:p1’aint”land ” it
acquitted the accused on” the gro’u1id,_:’that,.’the complainant has
suppressed the real facts. As r’ea_s.onillr;~gil’of the trial Court,
the complainarrtiiiadu’not2_requ–este’d :’t’lie-.a_cc:£1sed to execute the
lease deeds’ thiovfni.’ithe’bt1rd’err”on the complainant to
prove the !1ahilit3v’:’and ‘noted that the complainant has
failed to proyfe the of a legally enforceable debt, has
< dismissed the case'; Hence, this appeal.
." 3,
V. 4. It is seen that, the trial Court while disposing of the
__ri1atter has thrown the burden on the complainant to prove the
fact of lending money to the accused. Section 118 and 139 of
WW.
the Negotiable instruments Act provides for presumption of
existence of legally enforceable debt in favour ..jof’j««..tiie
complainant and that presumption has to be rehr;;itted..iylj)yi” ‘
accused. The decision of the Suprerriei”Coiirt’i_reporte~d_ AER,’
2010 SC 1898 i.n the case of Rangalppadfs. Malian
burden on the accused to dispro”ve.”the eXi’s.tet1Ce.=
enforceable debt by way Itpis accused
to rebut the pres.un1ption.,…:not of plausible
explanation?’ produced. The
approacVh__rQf’~.:hi_:é’ the burden on the
accused to prove li:ibilityiVa15P§i€;;~¢3,ito_be.,erroneous.
ei_rcur_nstanoes,….._appeal is allowed and the
impugn’ed__.order’ a.s’ideg”Ihe matter is remitted to the trial
for cf’ expeditiously. Office to send
‘baclé”,the’I*ecords.” . 3
Sd/~
Judge