IN THE HIGH COURT OF KARNATAKA AT BANGALORE...'»: "-:"D:"~A. "-
DATED THIS THE 3RD DAY OF DECEMBER 2008
BEFORE
THE HON'BLE MR. JUSTICE JVAWA§._RAIHzIM . 2 "
CRL.R.P. NO. 868/200$ 't:/v_\£
CRL.R.P. NO.869/2(_)__Q'8..v_
BETWEEN :
S R SHANTHARAM.» '
S/O S B RAJANNASETTYI
MA3OR .
R/A KENGERI SAT.E'L'L~ITE 'f.
BANGALORE-60"-~ A "
, _ C, _-,. PuE§T1T'I:Qi\'lER"'i'?€ '&IRL.R.P.868/O8
S R <3ORA;.A.}<RISH~:\tA.
S/O S B RAJANNA"SETIY.. A
MAJOR, A 7
R/A KENOER1 SATELLITE TOWN
* '~ ~ ..... 14 v
A 1=»ETIT:oNER IN CRL.R.P.869/O8
(By 'SH R'RARAS--..3AI,N,SV ADV.)
AAMD :
(By Sri C N RAJU, ADV.)
»R SATHISH KUMAR
» ,S,'.QA LATE" K RAMAIAH
=iMAJOR
_ R,!AT--ELAT NO 4, ANGEL'S PALACE APARTMENTS
A 3/T1, BERLI STREET CROSS
.. '' LANGFORD TOWN
BANGALORE-25
' RESPONDENT IN BOTH CASES
2
CRL.R.P. 868/08 FILED U/S.401 R/W 482 CR.P.C_4v!3VY~.._:THE
ADVOCATE FOR THE PETITIONER PRAYING T.H.ATf"THI'sx
HON'BLE COURT MAY BE PLEASED TO sET_..LASIOE1"----TfHE_'I.
JUDGMENT PASSED IN C.C.NO.584/07 IN THE FILE OE
XXXVI ADDL. CITY CIVIL AND s.J, 8ANGALO'R~E..iAND. ALSO
ORDER IN C.C.NO.329/04, ON THE' FILEOF Ti;-tE_XV A'DDL;:
C.M.M, BANGALORE.
CRL.R.P. 869/O8 FILED U/S.40-1r"R/W "482 'CP{._=P:CVy4'Vu5i5Y'VTHE V
ADVOCATE FOR THE RETI"r1ON"ER PRAYINI3 THAT "THIS
HON'BLE COURT MAY' PLEASED 'TO sET"'As'IDE THE
JUDGMENT PASSED IN».C.C.NOL;_585-/_of7'IN THE FILE OF
XXXVI ADDL. CITY CIVIL AND 513:," BANCSXALQRE AND ALSO
ORDER IN C.C.No..111/04,L.O*N THE FIL_E"'O,Lr'THE XV ADDL.
C.M.M, BANGA_L.CIR_E;. I
These petitiOns':cO'r_hinc Vavdimission this day, the court
made the' 'f0:~ioAV~;eing "ii:
'iSh@QER
Theseitwo VreVis~iVOns~'ii'are by the convicted accused
the }'_'udgrn'ents.«in Cri.As.584/O7 and 585/07 passed
ii'.,onf5;s,%2IoyO8]m[ the XXXVI Addl. City Civii & Sessions Judge,
Bangaléoreé, '.V"'Aic'i_iI<:.si"I1VissirIg the -appeals filed by them and
'77,.,,,.-.'V§I|owing V"C,RV.Ps.31O/07 and 311/O7 filed by the respondent
V' '..f_anidii"modifying the judgments of the triai court in C.C.
____"'i:"NO5.3'29/04 and C.C.No.111/O4 on the file of XV Addl. Chief
u"'~.i~v'ietropolitan Magistrate, Bangaiore, dated 26.4.2007
whereby the petitioners were convicted for the offence
3
punishable under Section 138, Negotiable Instrumerits,l_lAct
and sentenced to pay amounts stated therein.
2. The matter is listed for admis.s.i_on. 3'
learned counsel for the petitioners. i1'_'_an'i satisfiediu
requires reconsideration. Hence",-..petitions are'..ad'r1j1i'ttediand'» 3'
with the consent of the__|earned_._c:ou_ns.e| on i3o.t_h sides, it is
taken up for final disposlaifs.
3. The factuai rnatrix' "which petitioners
were prosec_u-tied u!t.injiat.e|y_<'1'ound.guilty of the offence
a}.,one .F2."S&ti:sh,,,'Kurnar,-'complainant in c.c.329/04
was engaged Vin_.retai,l:°3.s'ale of wine, while accused
Shantaram wa's~.._,Vt:he wholesaler. The latter borrowed
the complainant agreeing to repay the
regard issued two cheques for
Rs.5.,'00,'000/it each both dated 28.10.2003 towards
of liability. On presentation, the cheques were
r"etu'rn'ed dishonoured on 5.11.2003 for 'insufficiency of
3 'funds', necessitating issuance of statutory notice on
17.11.2003 which was served on the petitioner accused, but
5
it held the debt had to be discharged and since the..wh:'ol»e~~.of
the debt was not repaid, he was held to have ~
offence. So far as sentence is conce.rn_ed, prey/a.iVievd_ ii"
on the mind of thejudge and he directedctheiiaccusedi'
fine of Rs.7,60,000/- (C.C;:3'2.9./O4")"v.aiid' =es.e,se,eeo/-T
(C.C.111/O4).
d) Petitioners ivI1""-..V:'f)Oti'?p V{ca_s'e'si',':"assailed the said
judgment, whileétheh com'p'iainant with the
quantum of:_ and 311/O7.
The iearn_e_dV_a'~pp'eVi1i~a:t_e"'3u_dc§:ei the grounds urged
by both' -'with the complainant and
aiiowed thec'revision"pietiitionés, dismissing the appeals filed
by uaccusedib enhanced the sentence in each case,
the:a.r:cused to pay Rs.10,00,000/- in each case.
Ag_a'iins«t VVt'ite'v_v.saiid"judgments, accused are before this court,
V _ whiie"'the.V:corri'piainant has not chosen to initiate any further
it .sl;ega!..actVion.
Sri Paras Jain, iearned counsel for the petitioners in
uifboth cases, referring to the evidence of the accused in
if
/"A
10
documents have to be accepted as executed
complainant or disbelieved. Therefore, it
that the finding of the trial cou__rt._on
remained undisturbed. However, a'ppro_acij
court that complainants visi_o'n,_ shtouled is
erroneous in View of the in the
case of IVI.S.NARAYANvA~...F'lE,l\i()l'%i' 05 KERALA
(AIR 2006 SC 3366) 'referring to
its earlier ra - 45)
45. In-.,Hite.;n P. Dalai v,__Bratindranath Banerjee
[(vl2'O'O1).,6,SCC"i.6]',,a' 3-Judge Bench of this Court
heid thatalthouigh..,i;;y....re-ason of Sections 138 and
139 of Vthe'«.'Act,~_.th,e,presumption of law as
distinguisheci from presumption of fact is drawn,
the coL.irt"has_ no other option but to draw the
same in "every case where the factual basis of
_ffrai's,irig_ the "pi*--e--su'mption is established. Pal, J.
‘ ‘ sp’eai:.in’g._ for a 3–Judge Bench, however, opined:
__ . Vf’~3f,…~..IV;;;;”Presumptions are rules of evidence
“and ‘d-i3_ir’;not conflict with the presumption of
“~.inn’ocen’ce, because by the latter, all that is
rneant is that the prosecution is obliged to prove
.. the case against the accused beyond reasonabie
, “«doubt. The obligation on the prosecution may be
-discharged with the help of presumptions of law
or fact unless the accused adduces evidence
showing the reasonable possibility of the non-
existence of the presumed fact.
In other words, provided the facts required to
form the basis of a presumption of iaw exist, no
i2
received from the accused. Even otherwise, the conjplja-inia_nt
had failed to account for the money recovered .
to D3 in c.c.329/04 and Exs.D2 to as in c.c’;1rijj/io4~}:1ii,,thev
circumstances, the allegation of “the;”co5m’;:.l,ai-na’nt'”‘i:s..__not
convincing and at the most, it_co_uld tie ‘held that,jth,efe:’§
transaction between him and th_e’p.etit,i_oners.«.:1:n V}
9. To sustain N.I. Act,
existence of as be proved. In
the case or ‘j1\imvAol-rARAN M.J. &
ANOTI:-i’E%R’ the apex court, after
accepting the about issuance of
cheque tow’a.rd’s .|ia_bil~i~ty’,~.-“held that the complainant must
that onV’the*date of presenting the cheque, the
_’deb:t’0r”l~iabil’iity’ was existing. In the instant case, it was the
dlutyyléof _t.h’e’i__cbmplainant to prove that the debt or legal
l’,_|iabi|ityVstibsisted as on the date of when the cheques were
A”i,”_prese_nted. Except producing the cheques, bank
endorsement and copy of legal notice, there is nothing to
show that the debt/legal liability existed. On the other
hand, the accused have produced receipts and also reply
14
Metropolitan Magistrate, Bangalore, dated 26.4.2007 are set
aside. The accused in both the cases are absolved of
charges levelled under Section 138, N1. Act, V.
amount deposited, if any, is ordered to be:’»refL:gnd.ed ‘- ‘A
accused.
vgh*