SN THE HSGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 22"" DAY OF SEPTEMBER 2010
BEFORE
THE HON'BLE MR.3Ds'HcE HULUVADI.G....RJ3M_'E§VH
CRIMINAL APPEAL NOJ723 OFHDZM7 11]} % E 1
BETWEEN:
Smtlndumathi,
W/0 M.R.Ramesh,
Aged about 27 years,
We No.7, 3"" Cross,
Ashoknagar,
BSK 1" Stage, '- _ f 1 __
Bangaiore-56()Of0.__ H I LAPPELLANT
(By Sfi';SC',V'ijD§kH'1i1Hei1<.駣*S:1i;.t.H.G.Sandhya Vijaykumar,
Advs.) ' . O
./:.\_1iI2:--
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V' W/0 'f};'1zig2111"na,
_ Agédj. ziimilt. 45_'y:;a1fs,
O" RVI"Q._2I6/3'-.C,'Bzilaji Road,
H Biock, .1*.h;yaOga1'ajanaga:',
Bangz}101j§:--56()()28. "RESPONDENT
{By Sri'.B.S.Hadirna11i, Adv.)
Q: -.5 ) "/-
a re
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C. praying to set aside the iinptigned judgment of acquittal
order dt.6. l0.07 passed by the Xll Addl. C.i\/l.l\/1., Bangalore, in
C.C.No. 13067/2005. and convict the respondent/accused for the
offence P/U/S. I38 of N.I.Act.
Th;-is Criminal Appeal. coming on for hearing t'liis».dz1y,
the Court delivered the following: .« ' "
JUDGMENT
This appeal is by the complainant;againstthe”orde§’~..ofi=€:he
XII Addl. CMM, Banga]ore,_”–in (3llC..llVl0.Vl3i3:($7}Q200Sh ..l3datled.ii’
6.10.2007 dismissing the ct)mpl;1i.nt~and.._acqnit’ti:3gthyel accused.
Accoiidiagg the_:ceIn’pllainant, accused had borrowed a
loan of September 2004 and has repaid
Rs».’i.3,l50li/f on “i=2..1..Q.:04 and towards discharge of the balance
lo’an_ given a cheque for Rs.86,500/~ dated
on Sri Sudha Co~operative Bank Ltd., R.V.
Road~~b1′:1nch, Baiigalore which, on presentation, came to be
slipshonoured for insufficient funds. Accordingly, after issuance
0 to M __ot”leg’al notice, for non–payment, the case came to be filed. The
2′? V-
3
A
learned Magistrate after enquiry, holding that there is no
sufficient evidence to show that the complainant has lent a loan
of Rs.l,()0,()00/– and further noting that, transaction above
Rs.20,00()/– shall have to be made by way of cheque oi’..l?)-eiitiaiid
Draft and also, having taken note of the reply_.–;,j:ivieti.’.,byf “titer.
accused to the legal notice, th1’ow.i.n,g theib’urfl’eni°r)n.’the’
complainant, has dismissed the eom}:i’lairi–.t{ *Hence,”this apj_5eali;7–:
3. Heard.
The accused is that, the complainant
and herliusbaiid ifo.i'”c:.ivbly_.itooicthe cheque from her by illegally
t1’espassing._jnt<) her hou'se:,.by abusing and assaulting her. But,
the argument of .t_heilea1"necl Counsel for the appellant is that, the
;1c"ct1sed"thast*tfi_led a icoiniplaiiit against the appellant wherein she
V has"a.din,itted~the loan. transaction between them and when the
" appellant"i~n.sisted for payment of cash, she had issued cheques
fr)?-.._whi_eh .the- complainant was not agreeable, in which, 'B'
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report has been tiled and such being the case, dismissing of the
complaint by the trial Court in limine is erroneous.
5. Though, the stand taken by the accused i_s..that~..the
cheque was forcibly taken from her, but the compiaiiit. .
her against the appellant shows .that._4theI”eiiiiisi’*a;»
transaction between them. As per i”the7.decisi(5n_V’uf_the’_:}3.pe:£._
Court reported in AIR 2010 sictis98 iniithe oifsliiahgiappaiii V
Vs. Mohan, there is ar”1.,.j.ni_ti_al'”pre.sunipt_ion in”fav’our of the
complainant as per Section’iiV3′,-Yo? and i.t is for the
accused to :_iebiutf’-..the._lp;:es’urnption available, not by mere
plausible explanation;sbutgprcicif of explanation is necessary. In
.7′
the”*eii’c__u1nstances;-.the’ approach by the trial Court in
i dilsirnitssvihg—-.complai.nt that the transaction between the
parties s_houiid”have been through demand drafts or cheques is
er1’oneou§s.
” , 6. Hence, appeal is allowed and the impugned order of
the trial Court is aside. The accused is convicted for the
:3: . ,
offence punishable under Section B8 of N.l.Ac:t and se:’i’:.¢nced
to pay Rs. 2 ,55.()(‘)()/A, out of which, Rs.l,5(),()0()/-
to the Complzainant anti Rs.5_,0()()/– shall be 1″()rt’.¢_i_f<'°L(iV_t():fheiSt:itelu
In default to pay the amount,
impI'is0nm_ent for a period <)1"ti3;"z=:¢ :n()m..hs'.'–
Bkp