IN THE HIGH COURT OF XARNATAKA AT BANGALORE
DATED THIS ma 9*" DAY OF SEPTEMBER 2019
BEFORE :
THE HON'BE.E MRJUSTICE HULUVADI G. RAn(gE!§t<i\
QRIMINAL APPEAL No.158§g2oo7_,j? A
Bggwgen :
M.MaIiesh
S/o Malia,
Aged about 40 years,
C/0 Chandrappa Compound
7"' Cross, 4"' B Biock,
Mestripalya,
Koramanagaia, " _
Bangaiore ~--56O O34. " i' ;;~..Ap--peffant
( By Sri,M-,AM_,.iFio_Vor{a:;_ha &,'js;}§' E%.'u\E-..K.ri'shnappa,
Advocate ) _ 'I. . .
And :
__Dr.D.C.i«,Ramegowda.,_ A
'S,fo Late Channakeshavaraya Gowda,
'=_Aged..abo,ut«.?-Q 'years,
No 'S?""'Cross,_
:6"? Main, IAS Coiony,
. BTM I_I stage,' '
--Banga'I'ore*-.566 O78. .. Respondent
, By».$ri vF1.K.Keshava Murthy, Advocate )
‘Y’
‘ma
E
to
1
This Criminal Appeal is filed under Section 378 (4) of
Cr.P.C. praying to set aside the impugned judgment and
order dated 24.8.2007 passed by the I»-ion’blefX’.X)(\/I
Add|.City Civil 8: Sessions Judge, (CCH–37), Bang’al.o’re’,”–VVin
Criminal Appeai No.1944/2006 and confirm th.e~~-.jud_gi’:”rieritg
and order dated 12.12.2006 made by the XIX.A”‘Addi.’C._’i~l
Bangaiore, in C.C.No.31060/2002, ac_qu~i.tti’n_g* 0 tn’e__
respondent/accused for the offence _pun_i_shabIe ti’nder”S.ectio.n
138 of N.I. Act. I ‘7 v V ” ‘
This Criminal Appeai coming Conifer hea.r.in’g” thisf
the Court made the foilowing E
This appealjisfileidwbyitlie” assailing the
correctness order_V:=d_a’te’d–“_2?}:””August 2007, passed
by the i.i%d¢=.=ar1rig1e*s*1r..>g’i<$.1/IAd.di.clgty11civil & Sessions Judge,
Bangalore,.,_ign .crim'il»i.a: Apiseéi i\io.1944/2006.
_V;""1.Tj£2_e"««facts of the case are : the complainant
is said to have worked under the
«gaccuséed "for"s.ome time. The accused was in the habit of
"'..p.or:'lo-wing money from the complainant. In the month
january 2001, accused borrowed a sum of
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Rs.50,000/– from the complainant and issued a cheque
for Rs.50,000/–. When the complainant presented:'«,t"iie
cheque, it came to be dishonoured. As
issuance of legal notice, since ,a'ccused'..,did _Aln'o_t,vm:ake'.
payment, complaint came to _be fiiilediagainst_j_him'
the trial Court in C.C.No.31O€rQ:/'20D.2."*._VThe? triallvlwcourt 8
after enquiry, formed'::4'.a_n ilfwflreally the
accused has not from the
complainant, i=ii;a'T\"/Resre'pVi'ieq…'«fAsuitably to the
notice issued.' that the accused
has against the complainant
regarding 'steaiin'g'=.pF"thei"cheque and having' entertained
_a douVl:3.;t'as.to the cattituide of the accused, it opined that,
Vlfljgf coAm,pla'i*nant had committed the theft of the
chleqguhet,' not have stolen one cheque leaf, but
':~Vould."l*:ay"e,, stolen the entire cheque book itself. Thus, it
the accused guilty of the offence punishable under
4V-__,_"Sl7ection 138 of the Negotiable Instruments Act, 1881,
V
and convicted and sentenced him to pay a fine of Rs.1
lakh and in default of payment of fine, to u:'é.d'ergo
simple imprisonment for a period of two
aggrieved, the accused preferredypan app~ea'iv~–:ifn:CrirnViria:i 2
Appeal No.1944/2006. The Agmeiiate'ciotaiftiiiiiaxgmgj'
noted the conduct of the complaainanv-tijandi't»he{_javccu'sed,
accepting the versionftof thye.imaLc_cused.,.'"a–coui..t§ted the
accused and dismissed""'th_e which,
the present apvpe;'a!.._is urging
various . i I it
3. counsel appearing for both
the parti_es.Vi” i it it
by learned counsel appearing for
the aip__peiv_i.a~n:t}1.complainant that initial presumption is in
oflthe compiaihant as per Section 139 of the
and it is for the accused to rebut the
.:’_”ps=e~s:umption. The triai Court rightly accepted the
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version of the complainant and by hoiding that,.__i_t is
improbabie that the cheque couid have been
the compiainant, has convicted the accused;
Appeiiate Court has not rightiy'””int’erfeére.d
reasoned judgment of the triai Co’t_irt’.._x iViit_.jht’A’i:ae’
are some inconsistencies in the
compiainant. He being. ‘form the
basis to interfere with lay the trial
Court to acquit to support his
arguments, of the Supreme
Court in -vs– MOHAN (AIR 2010
SUPREME”C(§URT’=t1″$98)”*-cto. contend that the initiai
_Vpresum_ption is “in.._VV:favo:ur of the complainant and the
“o_nus*.i,s o_niit%iie”*accused to rebut the presumption. He
furtherv.re”i’ieVd.j.up.on the decision of the Andhra Pradesh
High C”otirt..Vih’ the case of GORANTLA VENKATESWARA
–[b’R;<to'V -'-iv.-se kou_A I/EERA RAGHA VA RAO AND ANOTHER
NCRL.£..J. 1), to contend that faiiure on the part
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of the accused in giving reply to the legal notice issued
by the complainant is a strong circumstance
inference that the accused borrowed the
the complainant.
5. Per contra, learned co_unse’l. appea,rinig«~vfor~~ithe = L’
respondent~accused has suh_mViAtvted.._,,Athat’,’–i…throughout
there is an complainant
as to lending “of: rather the
accused is whom the
corriifllainanti» as”””‘a”}driver. He further
has voluntarily left the
job. Heywaslhhardlyw’;ear_riii’1Ej Rs.2,5DO/– per month, and
fdut O5:,.,5v’irhi.,€»l1,”i–l7e h’ad””t’oV maintain his family. He further
slubrfiiits’étizeflcomplainant has no sufficient income
‘ “‘iexcept..,:_Vthe~ paid by the accused and if he had
“«’l.–Ti,”,’A’r’ea!i,yyadyanced the amount to the accused, he could not
A “have”»:e,iot quite and easily left the job and go away. He
if isubmits that, in the usual course, the accused was in
\.S<'/
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the habit of keeping one or two cheques with him for the
purpose of purchasing medicines. From which, one
cheque has been stoien by the compiaénant
misused the same. Even the accused,
know of the fact of filing of r;’orn”pi.a_iri’t
approached the poiice authoritiesié’.__T:i’i.|,_zthen’,_«v_,’tAhe
was not aware of the cheqtje» bein*g_V_”s,t.o|e’ri,”toy the
complainant. Onlyvion knovv “that the
compiaint has V beenAVV_JfiEiedhv”__VV fhim, accused
approached Police to fife
comp|aint._ advised not to register the
case as aiready a ‘cas,.eu”‘«i.s”‘r”i|ed against him, as such, he
keptjjuite. Theflliearned counsel further submitted that
had no financiai capacity to advance the
‘Aish.inconsistency in the version of the
‘scompilainanht, and that even the Pass Book produced by
it iiftrhieicompiainant reflects that at the reievant point of
V..__””.”tinae, there was no such amount being drawn from the
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Bank and the stand of the complainant that he had aiso
borrowed the amount from his friend, cajnn’o..tC’~’-Vvbe
accepted. He further submits that,
examined on behalf of the COmp.!ain.a4rjt
he used to lend some times Rs.i{)O/ieoir
complainant. The Appel|a»tej”Court’, the”:
evidence of the accused an..d——*h’i”s« son, rightiiyfiacquitted
the accused by a reasonediéiccordingiy, he
submitted that .impAug’n,e;d does not call for
interference’
6.’V_Ih___ arguments advanced, the
point that ‘woul’d.a’i–fisAe_’fo§; consideration is, whether the
“”o.rde.r:’:”iofi,,’~.§cquittai”passed by the lower Appeiiate Court
caiis,For::i:’n,te’rfere..nce and, whether the Appeiiate Court is
C justified v_i.rs~re’.versing the order of the trial Court.
2 What is being noted in the case on hand is that,
A”4″‘~-___'”:there exists a fiduciary relationship between the
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cheque has been stoien by the Complainant. The
Appeiiate Court has observed that the accused ca__me to
know about this oniy after he returned from
accepted the stand taken by the accused
to know about filing of the compfain-tyagainxstiilhim viater’. it
It has further observed that, comp|ia’i:3Aa’nt
capacity to make payment i«m’rnejdia’t.eI’y’ after,’V’
the Complainant had .ii’ef_t_ th.e””}O’bt;é»if’heF be’Cau”Se of the
‘conduct of the accused the:’com’pA!’ain’.ant must have
voluntariiy |ef’t”‘the iand “‘th:e:–“‘co.mpiainant has not
taken a_ny_ac’tivi(.i.n_yVV_a3gai’ny:st.vv_th_e_’accused. It is clear from
the stand taken ‘by”jvt’he””cofn’.pEainant that during lanuary
20O1.4,_;’he..had “ie.n’tV”Rsv{5O,OO0/- to the accused and also
the..c:om.”p:i.ai.nA’a.nt had some amount with him kept in the
had brought some amount from his
safrienhd and “lent the same to the accused. Subsequentiy
‘2..jwhat'”«.iys being anaiysed by the Appeiiate Court iooking in
Pass Book produced by the compiainant is that,
W,
in the version of the compiainant, it appears, ._ the
Appeilate Court has rightly acquitted the accusedc.Q:’Lb_dQ
not find any scope for interference with
Order.
Criminal Appeal is accortiingly £i5sihisse’ti;VA: ”
*b’1-5/\:1i4:’_ .