IN THE HIGH COURT OF KARNATAKA AT sAi§o}Ai.;'oiiE
DATED THIS THE 20%: DAY or SEPTEMBER giosilo -
BEFORE
THE HONBLE MRJUSTECE H'UlVLi:_yADi
Criminal of
Between: . l '
Gayathri Timbers .. -V
No.2, Triveni Road . V
Yeshwanthapura "_' -- V _
Bangalore 560 ~ ' _
Represented by its': . '
Pr0pri,9to.1: . ::... .
Sri Ratanshi _ .. Appellant
{By Sri aAndlS'ri:'.Vishwas L., Advocates}
And} -v
Wéod ~:p.di?tr'ié§
' N018. /82%, _Mi1l<._ Colony
" Maillesh\}vara.n1. est
Bangalore' O55
Represented by its
Proprietor Arun Kumar .. Respondent
A “:l.’M/s S.Nagaraj &: Assts., Advocates}
This criminal appeal is filed under Section 378(4)
l “”Cr.P.C. by the Advocate for the appellant. praying that
this Horfble Court may be pleased to set aside the
judgments cit. 4.4.2008 passed by the XII Addl. CMM,
W
Bangaiore in CC No.l432rfi/2007 e1cqL1itt.ing”L:’-‘the
respondenbaccused and etc.
This appeal Corning on for hearin_;_§w–.thi’s,V the -.
Court delivered the following:
JUD(}VME1\lT_’ C ” ‘C
This appeal is by the-v..,,complaiiii.an~t,ssseiiilllingl thett
order of the X11 Addvitional * it “ivletropolitan
Magistrate. Bangalore 14324/2007.
According to doing timber
business eiisproached for supply of
for having supplied
the mveitefirials,’ was due to the tune of
ovifards discharge of his liability, the
C has a cheque dated 15.01.2007 for
drawn on Bank of India, Malleswaram
Bra.r1cl1_;’ ‘ Oh presentation. the cheque was disbonoured
:”fo1j ins’ufficient funds. After causing legal notice, since
it . C ‘ac’cused did not niake payment, complaint came to be
-«filed under Section 200 C1*.P.C. before the jurisdictional
Magistrate for the alleged offence under Section 138 of
\,
if __
the Negotiable instruments Act. The trial cot1rt:.l:’d£ir:ii2,g
inquiry. has recorded the evidence of the c.’on1plai1i.ai1Vt_;e
About 42 documents were got rna’rk’ed.« Qn oflthneé
5′.
accused. accused himself got.:__ epgaininc-d”».a’nd:,”~..1;:~_
documents were got marked;-J;i’hereafter;«fh=etrial’ court it
opining that as on ti*;.e datelllofjlissuancelof cheque, it
cannot be believed that theldue in a sum
of Rs. 15,OO,QvG0../V has Hence
this V
tothe learned counsel for the
appellant-awhen’ refilly given by the accused to the
Iegailnotice he has specifically admitted the fact
a_lso_ag1<eed to settle the matter and nowhere he
claimed *that'*;'at.her complainant himself is due in a sum
–V of l§s…183O.Ol;lOOO/~ to the accused and even EXP42 is the
letter the handwriting of the accused himseif
Alalt:hr)t1gh the let.t.er~head belongs to the complainant
and, submits that the accused had undertaken to make
payment but the trial court without Elpprfigpieitttlégéi’pt}1.€
documents and facts that cheque was issued’ towai’ds»
legally enforceable debt, simplym ‘1*ias_
complaint under : A:CSe’ctio11 = ‘~
Cr.P.C. as a breach of c0ntra’ct”‘which”i.s eirrorie-pus.
3. The argument ‘M of for the
respondent supplied SI-Jbx
standard returned the same to the
is himself due in
a sumzof!RsV.”the customer of the accused
has grejepcted the ‘goods supplied by the complainant and,
ehequetiztvhich was given to the complainant
as«.i’a being misused. Apart from that, there
is also -admission on the part of the complainant that
_’i.wo_ more cheques which were issued by the accused
it with him. The complainant is taking advantage of
“the signed cheques issued to him towards security and
making a false claim for unlawful gain.
Ui-
4. Cheques are stated to have been
accused to the complainant. Signature on cheques.
not in dispute. T he contention,-‘o’f’*the “aecmsed is–.that&
cheque was taken by the complainant’ t’owa’r;dA.s*
5. The specific conte fit’:-on of’-the v1eaifned.._co113nse1._*
for the complainant is that due in a
sum of Rs.27,75.34i/;Ta: –_of issuance of
cheques and tow_ards””p’aift had issued a
Cheque ” V
On dishonour of the
Cheque,” fot to make arrangement for
paynient. ‘4Ae.eAord’i11gly,z’ he contended that the accused
1i_o§V (;(.i’n_1€ out with a different version and sought
6._,”1’t»a”ppears in the course of discussion, the trial
court, noted that there is a eo1’1t:1′.oVersy in respect of
“‘bil’1s’A’raised by the complainant. Except: the production
it “of invoice, the complainant: has not chosen to produce
the books of accounts to show that the said
credit bills and not the cash bills as
accused and also opined thatfthe”bu’rde;n:Ais.__or1fEt1*i’eo
complainant to show that the acc’usc.d. was:_l_ia’ble
the cheque amount as on th§–.t.l;j::ate oi the’ ch
7. In the decision..reportedns«iii 1898 in
the case of RANGAPPAV:’\:’f-$:,_ Court has
held that the accused to
the compli1_inatf1_t,. the iririftrial”-presvurnption is in favour of
the complainant”-~tliat'”th’e ‘cheque was issued towards
legally and it is for the accused to
or”es1..irn.ption not merely by plausible
‘ e§:p1a1’1atio:iii,::hiit he must offer proof of explanation.
course, there is a burden on the complainant
in business transaction for having supplied the
materiais or for receiving the cash and to produce the
accounts maintained regarding the proof of transactiori
ii?”
and the amount due which is normally dohe:l:b5§:’–.tl1e
accounts being maintained and e11t1ries’=.V:
maintained in the regular books:’olf’la(i:’eounts«.
the notice at EXP? makes ri;e.11tio1′.1’_~i
settlement of issues. Apartlfroizi that stated V
to be in the handwrit.i’hgp_ of althoulgh it is in
the letter–head of the to
settle the matteftiilh as noted above
in the thel’ac’clused to disprove the
existejzfiicelof debt and also it has to
be was issued towards legally
It
enfoj;ceablel.Vtiebt.’l’ ltlisl for the accused to rebut the
lv”pIjeVsi1Iiiptio1i__ and also to produce the proof of
has to rebut the presumption. It
appears that all is not well with both the parties. But
,::tAh.e_.4la\?V”favours the complainant when he holds the
l’cheque which is duly signed by the accused. Negative
l'”oI1us is on the accused to disprove the presumption
available under law. In the circumstances, the trial
3%,.
~ ;epé’ordEs7″ Tithe trial court.
Court also should have looked into the <:ase2".:i*1'o:m.l'vva
proper perspective to enable the parties'-Ito.~a(i'di,1e_ee
additional evidence if any. ar1dj'dils'p'osp_e..pof,the,ease' trig
accordance with the ratio laid the_–¥A'p.ex
in the above noted decision. x
9. In the light _ above, the
impugned is remitted
to the of the same in
aecordarieei the trial court is
directed to the parties to lead
addiitioitial elviri_er1ee.l’Otfiee is directed to send back the
Sd/-
Judge
Hmgx