1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dates this the 03"' Day of March 2010 BEFORE _ _ THE HON'BLE MRJUSTICE JAWAD _ CRL.A.NO.400/2004 'O I" I BETWEEN: SRI BT VIJAY, _ S/O BT THIMMARAYAP§'A',g AGED ABOUT 74 YEARS,"~~, RESIDING AT ANAND APART.ME--NTS, 2A, SADASHIvAIIAGAR,.sI""' - RMV EXTN., - - BANGALORE -- 560 Q_94*..-* _ . I "".v,AP.F?EL'LAi\ET 4.: ' [By Sri K.Ravi_S'Hvarjka'r,:Ac§v. 3351- Ashbk I€1a'I'ana'h.alii-- }7&SSOCiateS] SMI1§?€ISMA..0BI«!\2D11?".___ _ _ 2W/'O 1.'/\TE.Es~A A=NIi;».KUMAR, :58'; 1.5"' CROSS, 'I-§T"I.IAII\:, AECS I.AvD=..rr',, " -- .. SANJ}"«YNAGAR,"- B.ANGALO.RE_-- 5-50 094 ..RESPONDENT I I. ._:[By Sri MIN.Nehru & Associates, Aéx/.] CRL.A IS EILED UNDER SECTION 378(4) CR.P.C . PRAEI,I§jG TO SET ASIDE THE ORDER DATED 29-01-2004 _ RASSED BY THE XVTH ADDITIONAL C.M.M., BANGALORE CITY 7.II'I\i":C.C.NO.32677/2002 AND CONSEQUENTLY CONVICT THE ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT. THIS CRLA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: IE3" 2 JUDGMENT
This is the complainant’s appeal against the
judgment dated 29.1.2004 in C.C.No.32677/.,2d4QA2t’_.’or; the
file of the xv Addl. c.M.M., Bangalorggfatquiiicttilfigs
respondent of the charge for the;”oti’ence is
of the Negotiable Instruments Act”{fAo’r~’..shoi-tfthle’ N.I.f~\’c’ti)’.’*..g
2. The appeai filed -.oriw..V_%23.3.2__OO4’l,VV-,:it’:_i’s”-snot yet
admitted though the responVdent’gvis”d.uIy rleipresented.
eéra ad muivslsio n .
Appeal is admitted and by
consent it is’-taken up for final disposal.
“-S’;–i.ft1e’u-contextual facts are;
..__The«scomplainant initiated prosecution against the
.. respondent on the accusation that respondent had
«”‘~._VVi:)o-r”rowed from him a sum of Rs.1,00,000/- agreeing to
*:repay the same, but failed. On persistent demands she
made, issued cheque on 22.2.2002 for discharge of the
liability but the cheque on presentation to the Bank on
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27.2.2002 was dishonoured. The statutory notice” issued
in this regard was not compiied necessitating act_ion:~.._g’s*-..
On presentation of the compiaint,__.–3V_:tHh’e”5.’E’ea’rh.ed,g
jurisdictionai Magistrate took cognizanc_e”‘for–:’_the’-offence”.
under Section 138 of the N.:;Actjfaha”rrssiuanfrnomacifthe
accused-respondent. Thesrespondient put*u’p§jt’h.et”defence”
of denial simpliciter p_necessiptat:i’ng =t_riai,..’dr-urivnnguvwhiciw, the
compiainant examinedhims_eif{_a:s piaced reiiance
on 10 documents aiso examined
herseif _’–:whVo.: The triai
” on record that the
comptiiainanitiiitéadtin ,u’r1eqvu_ivo’ca| terms admitted that there
was adrnoneyrViendir;i§:’:”—-.;iraV.nsaction between him and the
husb’an.d of thegrespondent and that amount was stiii due
.2 to; hi_mi_–_7~.Since the transaction of ioan between the
the husband of the respondent was
su’bsis~tin’g}; the learned 3udge disbeiieved that the
V ” compviainant wouid have again advanced Rs.1,00,000/– to
respondent who was oniy a housewife. The
“observation of the triai Judge to reach such a conclusion is
found at para–7 of the impugned judgment. The second
aspect noticed by the triai }udge was that the accused had
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denied signature on the document and she had “alleged
that it was a forgery. The third aspect noticed bvy.V_th_4e’~~triai
Eudge was that the husband of the accuse§d..”d”Li–.fih{i
lifetime had obtained from he_rM.Mc_ertai_ri””‘b%an!<l*cheVques".
signed and such cheques must;'~:4ha§Ier.*been "gill/en::"by."*h.er
husband to the comp|ainant."'–._On theseafactlsftherrrl-earnedtL'
trial Judge concluded that |o_el:iVca:i__inference. be that
the complainant WOV{.£"l"(Zlv:"r1Ot"'. l'i§\/feat'.'aV§:'«ild.l1–CBd Rs.1,00,000/~
when there was repayment of
Rs.4,00,Q_Q0§;t§' Nurturing a doubt
the learned trial
' '
€.,V '–Sri.RVavi._ljV'._S'hanl<a*'r, learned counsel for the
appellant ta.kenA"me"'.through the evidence on record as
'a'iso' S'ri.M…N.Neh'r'u}'V|earned counsel for the respondent.
uwas_j..urged before me by the appellant's counsel
that ina~\.Ii_ejw'lof certain presumptioris available in favour of
the conipiainant against the accused incorporated under
'S,ec{ions 118 and 139 of the N.I.Act, the burden was on
it ___the accused to rebut the presumption. On the other
hand, the trial Court has in its wisdom declined to raise
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presumption in favour of the complainant and has__in fact
shifted the burden of proof on the complainant. if
7. In negation to it, learned counsel Srit.Ne.hru’__”wo:ul.d
contend that existence of debt had to ‘theft
complainant with clinching evidencet1:”‘The«scornph:lainan’t_ha’d
failed to establish that thechequeinsépugneVd5Twga’sissued
respect of ‘existing liability’.”V””‘e»l§l_’ere possesseioin a cheque
by the complainantveVntvit~le himxto an order
against the accused.VH_’l’ -*i’t.Tw§avs’«’~~urged that the
circumstance ‘in;g.ti§9.ihic:h the”xaccuse–d=w.ais placed itself show
that :’s_he–_ participating in the business
nor was’wi_n*nee’d_ ainyérnoney as the husband was the
pe.i{sontr.dea|ingwivth all business transaction.
” 2,8; E<eeping"i'n"'mind what is urged, I have examined
facts and the analysis of the trial Judge to
re.cord,.acqfuitta|. The evidence on record as discussed
abo\ieiV__is not in dispute, the cheque impugned is under the
's.ig:nature of the accused. The trial Judge compared the
it ___signature on the cheque with the admitted signature of the
accused. On such comparison, it opined that the
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to show that there was no existing debt or liabiiity as on
the date of presentation, there is no reason why the
presumption under Section 139 of N.I.Act shouid no’t»,have
been drawn. The trial Court instead of the
evidence in the Eight of this provision has. to
borrowed by the husband of res,pon:d,en;t”‘a,nd_,as it ‘
discharged by his disbeiéeved_evidéen_ce of theft co:rnp|a;in’ant:;n’
Since the trial Court has effect of
presumption under Act, the
right course wouid be to the trial
Court to of being heard
and Zfigthenixgiftfo*1-._,ip’as’S<ped_itious disposal is desirabie. Besides, it is
there is element of possibie settiement
b'e"tween"'the parties. For these two reasons, the
'rim,_pug"ned judgment is set aside and the matter is
C7-Jrfenaanded to the triaf Court for disposaf afresh according to
"flaw after giving an opportunity to both sides to argue the
matter afresh but on the evidence aiready on record,
8
preferably within the outer iimit of three months frpm the
date of receipt of records and copy of this order,
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.-
1LDee
m_v*fl
,, ab. ..
