' (S111. i>,1_p«..;~;:«f}G13E, ADV.,) IN THE HIGH COURT OF KARNATAKA AT BANGALQRE DATED THIS THE 19TH DAY OF FEBRUARY _ BEFORE THE HONBLE MR. JUSTICE S'ms.;_mé_V O " * cRL.A.No.944§';/20'o"7~ BEN/BEN: SR1. M. SATHYANANDA BHA'F__... ._ s/0. UPENDRA BHAT" " j' V NOW RESIDING AT 'I'W'IN (3'OTTAGE';--QPPQS1TE GOPAL KRISHNA MUTTA. KADRI KAMBLA BEJA1, MANGALORE .:..4;-- O - < " . . APPELLANT SMT. LEELA'I€,NAIR,PRO1?R1ETRD(, M/S. B.s,C0RPoRM*:QN..» 30, PANCRAMI COMPLEX; BEdAI, --' 575 004. ... RESPONDENT
— APPEAL FILED UNEJER SECTION
3’i=f3_{4] CR-,P;C BY ADV. FOR THE APPELLANT PRAYING
THAT THIS HO-N’BLE COURT MAY BE PLEASED TO SET
ASIBE’§’H-E JUSGMENT 8: ORDER 0:4′ ACQUITTAL DT.14~»3-
A 2097. PASSED B_’¥..’I’I-IE II AIZ3DL.C.J., (JR.DN.} & JMFQ,
‘AM_Ar~:{::;ALoRE, D.K., IN CRLCASE NO11391/1998 ~
“ACQUI’mNG mg RESPONDENT/ACCUSED FOR THE
OFFENCE P/U/8.138 02+’ N.I.AC’I’. S
T
effect. Therefore. he did not invest amount in it. If he had
invested any amount that could be done only in the year
1993. He himself has stated in para–14 of
examination that he invested Rs.50,000__/’ii.
borrowed from his father, thoughjhe resp’oiid’ent””has not”.
told how much to invest into the ‘busiriess. ‘H_o’weve’r.:he”iias
failed to produce any donilnmaentsll’-as exlii’i’oit;s.,..and§
evidence to that effect. Since, heffailed to materials
and also the evidencefii11_ S’1lp:§iOl’f”~.O’f..fk§$ claim, the court
below has disbelieved “rejected”his petition.
,1’0;~ lhaiidjf the respondent–accused
herself has __the appellant–complainant has
misuseduxa-.._sumV’ofVA’Rs’..’§~.’5O.OO0/– in addition to which he
boritowed pa s.fur1i..of___pRs.75,000/– from her husband. Since
‘ shedid”ncst_repay, a complaint has been lodged against the
R these throw a light on the conduct of the
In View of the crirninal cases filed against the
“appellant himself shows that he is indulged in
frrrfisappropriation of the fund belongs to the corporation.
i
E
11. It is also referred by the court below that two
criminal cases were filed by the accused against the
complainant in C.C.Nos.388/1989 and 446/2006′-thefile
of the 11 Additional co. {Jr.Dn}, JMFC, Mangal_ote;’:D;K.:’. _1_”n_
C.C.No.338/1989, the Court by ape’ order–‘d-eaiea.:1*:4;.3l20o7’;°’~–
has held the accused guilty for offence’4poniS’hab1’e-grader
Section 138 of N.I. Act. In.<3.-c.No.'4cl6';'2oo5',""%'
its order dated 14.3.2007 has uallovvepd the byvvfgconvicting
the appellant for the undet dection 138
of N.I. Act.
. ‘a.l;;’oye A’proc”eedings Show that the
appellant hah_i’teA._oi”._tn.isusing the office wherever he
works. p.tesa.,i:=n1ption goes in favour of the holder
ofthe Jchequeddt;e,.,.,_____the appellant but the same has to be
‘ yrebuttiedty appellant has not placed any materials or
H deposited in the respondent–Corporation
claims that the amount was borrowed from the
“p’riyateV” parties and also from his father and they have not
“been examined. In his cross examination he has stated in
it “para 14 that “I do not know how many times how much
T
amount was invested in the Corporation. As per the oral
agreement, he should be given a share in the profit”. This
evidence itself goes to show that he was not sure whether
any amount Was deposited in the responder1t»Corpo”ration.
The Court below has referred the Hon’bie
decision reported in 2005(5) so 547 in*f};’he:eeVe’ae’ee»
M.S.NARAYAN MENON @ MANI j–§}s’~rSTfATi’E_:’& ‘
ORS., Where it is held as foiiows: i
“The standard of recjizired -to the:
presumption under Seetio:rL__13_;_S of N.I,_ Act is
probable defence for}. . preponderance of
probabilities. So, ~iu)he’n”‘the_.~sdaio},fa:io is seen
once the .pi’oduced.V___the’ materials or
brought itxoutfronz produced by the
complainantxthat h.£sd’or_’ he? defence is so probable
_vVsarr:e”._iAbouId ceftaihiy rebut the presumption
.s'”[r’i1ftinga. “onus the complainant to
V tabbish teased.
13. A of the said decision referred above.
i:h3ejV»~va;;§p»ei1aI1t faiied to discharge his duties to own the
” “V_’v..pres~z–.2:ii*ptio1f1hand at the same time the accused has
eiiectieelysirebutted the presumption against the appellant.
“Y
1G
14. In these circumstances, as per the judgfient of
the Horfble Supreme Court referred to supra, in;te–rfe;e’_r1 e”e.:V’i:;y
this Court is uncalied for.
Accordingiy, the criminai ap”pea}:’ is~dismissed.éV
TL