IN THE PHGH COURT OF KARNATAK/«\ AT BANGALORE Dated this the 9"' day of August, 2010 Beibre THE HON'BL-EMR JUSTICE HULUVAIJI G RAA'ri.§3S.H[ " Crim.inal Appeal 593 /;20o7<. 4_ Between: G T Dhmmaiah Gowda S/0 iale Thimmaiah Gowda R/0 Tundur Post, Mzmdagadde Hobii ' ii Thirthahalli Taluk, Shimoga Dis£1'i'L'.'g * Appéliam" (By Sri A H Bhagavzm, Adv.) And: Smt Sharavath:_ _ V W/0 late Krishaiqji 'R210 ' Prop: Shivaji Ri.Cé;_& FVl()ur.i\/15-115 __ ' Mandagadde, Thi1'th:=.hz1iv1i .' S Respondent
(1:3.ys_;-a Nz1V_§21§:;1__jEI;’_§ aEEgl, Adv;)__ _____ H .
‘A,pp’ca1T :~s._f’1~1c>dvu.umear3378(4) of the Code ofCrin1inaI Procedure
p1’aying_ L0.”:~;eA£ -:=_.s:’11Ec 1hl:.,j’1:cig111e:1t of acquiital petssed by the Sessions
Fi1sE’T1’ack Ciulré 1, Shimoga in CrI.A 95/2006 on 16.3.2007 and,
confirm EE1é:««.jL1d,f_;1″r’:;:n.:” of conviction and sentence dated 5.9.2006 in CC
by 1I1e3MFC. Thirfiahalli.
_ .» ‘ T}3(;’/”{A’iT)§)C£1] coming on for Hearing this day. Court delivered the
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The appeal is by the complainant heing aggrieved by the ()I'dCl'_ of
acquittal passed by the Fast Tract Court i, Shirnoga in Ci'l.A 95/?.{)t)t5:'
16.3.2007.
The facts are: The appellant herein filed a C()111p13l1]_i. the 3
JMFC, “Fhirthahalli for the offence punishahle
Negotiable Instruments Act. The c()Vn’iplainant._anrl the.V.acc.used a”.re”*
known to each other for more than f’ifteen”31ears_. The-.aecu:sedV’,are the
mother and CO’n1pihinanl, by a letter dated
29.10.1997, him for financial assistance
for effecting In fact, the letter is addressed by
the C(l’11a1V'[“)’l’£’v..i_..l.”.l.:’.1.l«”i’t through the 2″” accused. In the letter,
repa’;njne.nt’ usf the”ltandfl’l–r.)a11 was also assured, on or before 20.4.1998.
‘ V’ =..__VB.elievini5 the w()i’cis..t_>l’.the accused. eoinplainant advanced an amount of
.:i_i’i’–R_s4.’75.()()0/–cut”Qf vwhieh Rs.6(),()()()/~ was in cash and the remaining
‘f_’_’Rs_tl’5:.’0()V(l/lwzts through a cheque. The l” accused had issued a cheque.
ih 2il}.4~_l998 drawn on Shimoga DCC Bank, Tudur Branch. On
2.().?i.]998, the E” accused requested the eompiainaiit to present the
3
cheque on 2().6.l998. Ultimately, the cheque was dishonoured for
insufficient fuiids. A legal notice came to be issued during July l.998
demanding payment of the loan amount with interest at 18% tl’1er’e=:i);i2.,p’
The accused is said to have not replied to the said notice. liitliis.regarrl; — i’
a complaint was lodged under S200, Cr.PC .cpifnplaii_iant_.
trial court having taken cognizance of the niattei’r:,. after due” ~il1qL1i1E:’.)/’E. i
convicted and sentenced the accused to tiiidergo simple pll”!if)}’i.E_§()1TtT1€llf for
six; months and to pay compeiisatipn oi?*Ris.”}t.:lakhe-.t_e the cit)’:i’rplainaiit.
Being aggrieved by the said order, filed an appeal
before. the lower appellate “_’c-ourisf l0Wier.j_’~3ppeilflate court. on the
ground that to the c0m.pla.inant is
fabricated and iistatiing could have been issued in
connection if¢’itheAs()nie ethei”tran’:sacti0ii, while reversing the finding of
iactltiiiitled againstwhich, the c0mplain.an.t is
before”1.hi:s”_{ft5uitt,fin éippezii’, on various grounds.
Heard the c0’ui_1sel representing the appellant.
use
“the _ainotrnt..on or before ;7,(.)”‘
4
The respondent had borrowed loan of Rs.75,U()(}/– by sending :2
letter through her son who is the 2″ accused. The signztture of the said
letter is not in dispute nor the same has been denied by the E” accused
and also, it is not even the ease of the accused that the cheque
in connection with some other transaction and when such :_.
the lower appellate court having jumped to V the
cheque must have been issued in connection .%'(:3*i’1″£’t.3:”0ll’l.,{§’ii Q
has no foundation. it is submitted by»tihe.._learr1e\ Kfiilf ii A’ .’
set tmgzc» t ~
April 1998. Also, noting the evidence of
so ,
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all
is
the compE.z1int1nt that the complainant and accused are wcii acquainted,
he had lent the ioztn of Rs.75,(}00/- for which even the accused had
issued 21 cheque dated 20.4.3998 drawn on Shimoga DCC Bttnk, Tudur
Branch for Rs.75,()()0/w» and, {taking note of the documents pifoduced7,..
triai court based on the evidence of the comp1_ai.nant and_;’o’ne§jrno:i’e
witness who is the Man21gei”o’1’the Bank, having held that the had _ it
been issued by the accused towards a iegaiiyV=eit[‘orcezibi.et,d’eht”end’a1_so«.;tA
noting that the signature of the accused on the ielteqlte tttliiietsvaund the
cheque was dishonored for insufficient l’un’ds and theeheque was not
returned for any other reason he:-:..eie’pt for ;Vinsu’i’f_ie.ietit_ funds, and also
noting that i_ir1_piiedly the accused admitted
liability and had ..i_ssu.e.di found that the accused had
borrowed ‘émftount :”*rc_)n1’htiheicoihiaiainant for effecting repairs to her
there iegztlly en forceable debt and, referring to
S.1.39″‘of’the¢1Neg’et’i;thiiesi’nst’rumcnts Act, having noted that there is no
ret31_1ttal evidence ~,to° rebut the presumption, convicted the accused
it “hr)i§.ding;..tltat thechequc. was issued t<)\x,:tti*ds ta iegaiiy enforce:-thie debt.
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already repayment of the amount. Thus, the presumption under 8.139 of
the Negotiable instruments Act which favours the complainant has .-not
been rebutted from probable and believable defense/stand.
c.ircumstances, the finding of the lower appellate court in ”
finding of the trial court, being perverse, calls for”i11–terferenc_e.
Accordingly, the appeal is allowed. Iirnpuggned Al
the lower appellate court is set aside uQh’i.E:e restoring thees’ord_evrt_Vof the i
learned Magistrate. However, the order to ondeigo imprisoinrnentfi for six
months is set aside subject to p-a§?’m_eri.t caf .R’s’;.1;:2o;eo0/– within four
months from the date of receipt .oI”thiis.order_’and, to pay fine of
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Rs.2,0GO/–@defau1t; sentence of 1i5’wdaytss”:;i:rnpie’irnpnsonment
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