High Court Karnataka High Court

Sundar Shetty vs Satish Mallaya on 16 August, 2010

Karnataka High Court
Sundar Shetty vs Satish Mallaya on 16 August, 2010
Author: Huluvadi G.Ramesh
IN THE HIGH coom OF KARNATAKA AT BANGALQR_Ee._V
Dated this the 16"' day of August, 2010 _  C C   A  

Before

THE HON'BLE MR JUSTICE HUL=UVADIfiv  C    7

Criminal Appeals' -1579   V
Between:    

Sundar Sheity, 46 yrs

S/o Koraga Shetty

Kaiithadmane, Parangipet _     
BantwalTa1uk,D K   _    C  Appeiiant

(By Sri ITharanati_1  Ari'./.)€  'C _ i.  C

And:

Satish Mallziya __ . 1'   __ -- .
S/o late K Koganna Maliaya   
P V S Compound, Mantiagiiddex 

Mangaiore _ " Respondent

C    under S.378(4) of the Code of Criminal Procedure
prayingxoi set:':a.sui'deV".e~:the order dated 7.8.2007 in cc 5799/2006 by the

C V C V  V . EMFC; gavloreti. '

it   'A The Aopieai coming on for Hearing this day, Court deiivered the

  A foliilioa/i'11»g-..  J/"/



JUDGMENT

Appeal is by the complainant assailing the order of,

the complaint and acquittal of the accused, by the _A 7′

Mangalore in CC 5791/2006 on 7.8.2007.

Heard the counsel for the appe’lVi’aiTi:’t;» The ” resipondenii although

served with notice, is neither priesepnt reipi-‘es-ente.d through :1 counsel.
It is in connection with ‘di7s_ri1issa,1.7’ol’ thec’.co.rnp-laint filed by the

complainant:appellantvagaiiiet ti’ie_7fe.spondent for dishonour of the cheque
of Rs.1,50,000/as an”endorseifie_nt that the account has been closed,

complainagnti’ is before” thipsi Court.

” A.c_c°ord.ing..,_ to the”*–c-oinplainant, the cheque was issued for

by the respondent for having borrowed the loan

R3,}_.S0,000{~’.v’Vie:Jrlbwever, what is being admitted by the appellant

himself is, his’ brother is looking after the finance and he does not know

anytiainig,’ Further, on behalf of the accused, when the cheque was

Jfiy,

confronted to the complainant, he showed his ignorance of issuing any
loan from the company. That apart, the pass book issued in the name of

the accused shows receiving of cash of Rs.4,000/- and 5000/» through

Demand Drafts. Further, in the pass book there is also an entry”

extent of Rs.9,l00/- as balance as on 19.10.2003.

It appears, all is not weli with the complainant ‘~ .\?V*heii”thVe’~.

accused has taken a stand that the cheque_vp4ih’asbeerVi isstiedas the
trial court having disbelieved the versi01’i”ofithe”c.omplainant,~’dismissed

the complaint.

Accordingpiito the. it is only Rs.50,000/– he has

borrowed from the Fina,nceViCorporation. The complainant admittedly is

not theibusiness but, his brother is stated to be looking after

the same-L’_p Thoiigh ini’tial presumption is in favour of the complainant,

H but it is admi:_tedly”:a case of financial transaction and he would have

imainitainted theaccotlnts. ‘}”he rival contention is that as part payment,

ainouiltihasiibeen paid from time to time. Might be the cheque which is

JP’

taken towards security must have been misused by filling the amotii!.t as

is stated by the respondent accused and also opined by the tri,aE.co1i:rt,- ” ,

However, to enable the appellant securel’?and’ ‘produce”thell~

account books and to claim the exact due and also in thelcase “wh’etl*ierl’=

there exists an enforceable debt, has to°b.e°thrashed._9u’tbefore the trial
court or else, if it is feasible ‘for’*~the ltocosne to terrns, the trial
court can also allow the parties tvoV_co1_npo’und the ¢t£¢n_¢:.- by setting aside
the impugned order.s_”

Accdtfdingly, .i;ripugn.ed~Q_rderj is set aside. Matter is remitted

to the trial courtlfor disp(;sla}., in. accordance with law, after affording

_opportur1ity to the parties. Vllf the parties are likely to negotiate and go for

“‘s,ettlemetl1t, trial«,_court may also allow such settlement. Appeal is

allo”we’cll5ack the records.

sal’
N06′?