1 IN THE HXGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 14"' my 0E DECEMBER 2910 BEEORE THE HON'BLE MRJUSTICE HULUVADI.G.RA'A/TTESH CRIMINAL APPEAL NO.649 OF 2909A' T' % BETWEEN: Canara Nidhi Limited, An incorporated company under the°xV A' Provisions of the Companies Act, " Registered office: Syndicate MANIPAL--576 I 04. RepreTSente'd..tjy_ Hokier _ Sri Eat1aka~ishna'Anayazg;«_fAe S/o Apmya Naywgk; Aged abo'u.t_47, yea.Ts.7_ ..APPELLANT V. (I3y§'.:M/_$:.E§skey"Associates, Advs.) Alva, S/o' 1ate_VP.'Narayan Alva, l\/Iaj()"1',V__ " .. AAGT-anesh Motors, ' 'Maha1axmi Complex, V}Durbe, Puttur--57420l. ..RESPONDENT
(By Sri.M’.J.Al\/3., Adv.)
W
I
This Criminal Appeal is filed under Sect’ion.-‘”378 of
Cr.P.C. praying to set aside the judgment dated_.v2%l’.~6′.i2{)09
passed by the III Acldl. Civil Judge and J.M.F._C..,j»Udupi’in
C.C.No.231/2007 — acquitting the respondent/accused§.forp:”theg
offence P/U/S. “138 of N.l.ACt. _ pp _ _
This Criminal Appeal coming; on’fo«r_hearingV:tl2.i_sday, the
Court delivered the following: I ” V’
UDGMENT
This appeal is by the co_mpplai_na.nt chailengitaé the order
of dismissal passed Judge and EMFC,
Udupi, in C.C.,.No.23 1/2007 as.dia.5t2oe9.
Accoriiirigilto.tthee,co-mplainant, accused had borrowed a
sum of lR.g’V,3,.5(l)ll,l{,l._()lil(};’l._–V” l3.3.l996 from the complainant
ha’}}’}ngp._flag1feed’to-pay’ the interest @ 21.65% pa. and also
thtepcopnditions imposed. Since he committed default,
tlaepll matt.ei*i_.Wlas referred to ai’bitration. In the Arbitration
ppproceeclihgs before the District Eudge, Udupi, the parties
C –..pen.tered into compromise and accused agreed to pay an amount
” Rs.8,54,000/– towards which hietiissued a cheque dated
<\'P/
3
16.5.2006 drawn on Syndicate Bank, Puttur which, on
presentation for encashment, came to be returned as ‘account
closed’. Thereafter, notice was issued which was returned as
not claimed. Accordingly, complaint came to be he
J
trial court, after enquiry, has dismissed the coraplllaintci
which, this appeal is filed.
3. Heard. it
t<_)_'th'e' there is a legally
enf0rc"eab*le d.ebt5:'a.r_rd the zirbitration award the cheque
was issued._by the 'a.ccu§:;d and the same was returned as
.. .. actc(}untgVc1Q_sed, he'n.c.e.,he is liable to pay the amount.
5, .Aceording to the accused, the cheque in question was
ppcollected' by the complainant at the time of raising loan as
l '-.V_lse-Curity during E996 and, despite order being passed in the
l " "-"arbitration proceedings to realize the amount by attaching the
property of the accused, the cheque issued has been misused by
W.
4
the complainant and the contention of the complainant that the
cheque was issued during 2006 is false.
6. It appears there is truth in the submissiopfmadevihhy
learned Counsel for the accusecit” -As thel
complainant himself, the of the._acc-used: has been
attached and that is the’s_ub_iect.’_inatte’i’–«of execution to realize the
amount of the complainantand.it:.,,wou,ld”‘lfe–teh approximately
complainant himself, when an
execution 1s_hl.ed a_nd.,it’i,S~’pend1ng_ COI’lSld€l’a[10Il, it is for the
conjiplaiinant to ‘proceed against the property of the accused to
_ r*eco*s.zer-v.,_the”l’aifiraouat and to pay the excess amount to the
alceused. . However, the complainant would be having a lien or
Aprioritj;-‘.__:l:)f right over the property to realize the amount as per
i ‘–_e1’1ti.tlement based on the date of events. However, the stand of
ii ” “the complainant that the cheque was issued by the accused
during 2006 falls to the ground as, admittedly an open cheque
W.
signed by the accused was issued way back during E996_>and it
has been fiiied up by the complainant for realizingflic.
8. With the above liberty tofltiroceéed ii
of the accused, this appea} is Vdt3p0sed”Q’f’;’–
…-5.