1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 215' DAY OF OCTOBER, 2010
BEFORE
THE HONBLE MRSJUSTICE B.V.NAGARAT}iVNAL"O._V_
CRIMINAL APPEAL No.108'?/2006x.....__ 4' . ' L. ~
BETWEEN:
MR. BABU SI-1E'I'"I'Y,
AGED ABOUT 57 YEARS,
S/O LATE DOGRA SHETFY,
R/AT BAWA HOUSE, ' -
NADSAL VILLAGE,
PADUBIDRI POST,
UDUPI TALUK.
. . APPELLANT
(BY SR1. P:19.Hz3O15I+:«,. FOR
SR1 R.B.DESHPANDE}, COIJNSEL)
AN1;g_:' " _
" . MRS; E!H1LOMENA"B'¥LANDARY
, . AGI_3D_ABO.UT.47 YEARS,
12.'/A1? cH1"rHRA*;{UTEER,
KATiPAL1;A__c£§Oss ROAD.
IDDYA X/'ELLg_1.GE,
MANGALORE TALUK. ...RESPONDEN'I'
(BY s'R;1b.Ro1--11T URS, ADVOCATE FOR
V' SRMTHARANATH POOJARY, ADVOCATE)
W
**=i<**
THIS CRIMINAL APPEAL IS FILED U/S.378-{4} OF'
CR.P.C. PRAYING To SET ASIDE THE JUDGMEI§IT_j"DAfIfED
17.5.2006 PASSED BY THE 11 ADDL._;""'S«.!.l'...___:
MANGALDEE IN CRL.A.NO.367/2004 ACQLlI'l'lN.C{ *rI§E"
RESPONDENT -« ACCUSED FOR 'OF':'FEl;\J'C$'4 U'/S3. I382'; "
OF IPC.
THIS APPEAL COMING QN I$DR"HEAEI:{\'Is,':TIIIS; DAY},
COURT DELIVERED THE PoLL(jV*.rING§-- _
4...W........II 19 '
This appeal is £1153 of Cr.P.C. by
the C0mp1ain.a.rIt -.i._n the file of the
V JMFC. 1I~;aI-Iig2;I£:rei--,_ ¢n'e_;:1_éngIn"g55tne__order dated 17/5/2006
passeCi..Ain*.C1'i.1tri'i:'i$il:LPxpD'e;Il""No.f367/2004 by the 11 Add}. Dist.
and Sessiohs 4§\/Iangalore, by which the order of
the._§trial. Court set aside and the Complaint filed by the
Cozhplgiiriant/appellant herein was dismissed.
lh Sake of Convenience. the parties shall be
refei'reCl.to. terms of their status before the trial Court.
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3. The appellant who is the complainant filed a
complaint under Section 138 of the Negotiable Instruments
Act (hereinafter, referred to as 'the Act' for the sake of
brevity], I'/W Section 200 of Cr.P.C contending" the
accused owned seven cents of land in Sy.No.9--_1:1i*--{dport'io;il of
Edya Village along with her family
originally granted on OCCL1paI1Cy::.'i'ig]il_:t" if
father of the accused, by the Land Ti'il:iunal antion his'.dea
the same had devolved on the'"afc'c~_ised and heirs.'
The accused along with o_ther'eo;-slia__rers agreed to sell the
land to the complainant-1'and':alsc~,_ireiceived a part of the
consicierationiivfamount_:o£:Rs.35dif500/~. Subsequently, due to
difference of opinio:_i1.,_'r1o__"sale deed was executed in favour of
the gcomplaina'Iit;V'Vtliat_ there was a compromise between the
complainant and"th"edaccused and it was amicably decided
should pay an amount of Rs.80,000/-- to the
jdtowards full and final settlement. of amount
payable'3_ to the complainant in respect of the aforesaid
'~ iiagieement sale: that towards the payment of the said amount
'of Rs.80.000/-- the accused had issued a cheque bearing
%%/a
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No.937532 dated 15/2/2003 drawn on Vijaya Bank,
Surathkal Branch, Mangalore, in favour of the complainant;
that on presentation of the said cheque it was returned as
dishonoured for "insufficient funds". Thereafte.r;c._c the
complainant issued registered notice dated 4/7
his lawyer, calling upon the accused to pay _t.he
the stipulated period as required,' underfj.
notice was served on the accused on"8./7/2:GfO3:.f inspite of
service of notice, the accused°rfailed the payment
within the stipulated peflod .thedishonot1red cheque
and hence, he got issued af.V"falfse_.~.,rep1yhand therefore on
16/ wasvufiled against the accused for
an offence 'said tocommitted under Section 138 of
the Act.
.13/,*;, A.Afterf"receipt of the complaint, the sworn
'statement~v complainant was recorded and on taking
co_gnizan.celc_of the complaint, summons was ordered to the
accusediarid thereafter. substance of the complaint was put to
thefaccused and she pleaded not guilty and claimed to be
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tried. In support of his case, the complainant examined
himself as P.W.1 and another witness as P.W.2 and produced
twelve documents, which were marked as Exs.P,1 to £3.12
while the accused examined herself as D.W.1_4vV.,a1'i,d~.._her
husband was examined as D.W.2 and she
documents which were marked _
statement of the accused under ,iv3lll'a,'3g.:"i'i~,f£_Lis
recorded. l l l V
5. The trial Court points for its
consideration:- it it t
.1';i'Whe1j'her'7i;'r1e lcornnlainantvl proves that, accused has
committed 4' an :¢r§¢n¢e,fiu.;§'i's1jab1e under Section 138 of N .I.
Act beyondarleasonablie tldolubt?
V » ' "-Nhatl'tord.er_'_.?M ¢ .
V _ a1:sW--ered the Point No.1 in the affirmative.
6,. .\li:i-.,.r"'g:f:ter hearing the arguments, the trial Court
allowedthe complainant and convicted the accused for an
offence punishable under Section 138 offithe Act and
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sentenced her to pay fine of Rs.90,000/~ and in default of
payment of line, the accused to undergo simple imprisonment
for a period of three months and furiher invokingfiection
357(i){b) of Cr.P.C., a sum of Rs.88.000/» was ordered.:f_Vi.Qvgbe
paid as compensation to the complainant.
7. Being aggrieved by the said 'order of f j
accused preferred Criminal Appenalg
complainant preferred Clrirninal " Rey3'sion_V"wPetition'
No.299/2004 seeking enhancernent o~f_sente'11ce before the H
Addl. Dist. and SeSsions'Judg?_,
"-appellai:'eVVVVC'ourt raised the following
points"-ford' " h
_ "The°'~poin.ts'V--. th--atV'*arise for my consideration are as
.....
V _ “the complainant has proved that there was an
agreveiment entered into by the accused in favour of the
~ complainant to sell the property measuring 7 cents in
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Sy.No.9/14 {Portion} of Idya Village for a consideration
amount of Rs.35.5OG/–‘?
Vlmether the complainant further proveS–___ that
subsequently there was a compromise and as_j)’er”teit1jns
of compromise, the accused was l-iableflto
Rs.80.000/W to the complainant.4therehy’;”rthe.l”accr,1sedu’ it
was liable to pay Rs.80,000/into 7ft
Whether the accused cor2:1:r11i»ttedV.offeiicejfurider”SectioriV
138 of N.I.ACt’? V
Whether the adequate and
Whether the and order of sentence under
V . appeal a_rer1ia~b1e;toA he quashed?
Q}:der?”.. ….. ..
Arid.V.arisvr?e»r_ed!Point Nos. 1 to 3 in the negative and Point No.4
did.”‘not–.VAarivs’e for consideration and Point Nos.5 and 6 were
M ii liable to”be dismissed. u,;/
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9. Being aggrieved by the said order of dismissal of
the complaint and allowing the appeal filed by the accused,
the complainant has preferred this appeal.
10. I have heard the learned counsel appjea1″i.ing’..for
the appellant. and the learned counsel for the ‘
perused the material on record. –
11. It is contended . «.
appellant/ complainant that ‘judgnient’ of: ‘the’-trial ‘Court’
convicting the accused.’ for ,an–. ioFfer1,ce punishalole under
Section 138 of the Actlavvas’ and should not
have been “‘the*’l’1rst appellate Court. He
submits tiiatithefe»..vverel”s_everal contradictions in the defence
raised _acc.us’ed” also in the evidence let in and
hence.’ the first uappvpellvate Court was not right in dismissing
.the_ con1plaiIit;_ that under Section 138 of the Act, a
H presurnlfifionislvraised in favour of the complainant and the
burdenflieson the accused to rebut the said presumption by
effective’ evidence. In the instant case, on account of material
contradictions in the evidence let in by the accused, there was
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3-,x.
M
no rebuttal of the presumption raised in favour __of the
complainant and ignoring the said fact, the first.”a..ppe’1~1ate
Court has erroneously dismissed the complaint,-* at
12. Drawing my attentional” to. it
produced by the accused, counsel appe’ll.rant.V
that while the complaint ntadie”‘~._before._the_ with’?
regard to the loss of the.entire~’chepguewboolt lbeforeviithe police,
it was with regard to in question that
the accused h”a.<.§::ti€_)'t been into' how the number
of the chegue" case was known to
the before the police if
had been lost. He has also
stated that_l'4tl1eliriitial lies on the complaint and it was
for.._§theeA.accusedll to prove that there was no transaction
'parties ir respect of which she had to issue the
.cbl'3_<li1E' fafia :iu'n""the absence of any such evidence, the first
appellate Court could not have held in favour of the accused.
_He therefore, submitted that the order of the first appellate
at '-._C"oL1rt be set aside and the order of the trial Court be upheld.
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13. Per contra, learned counsel for the respondent
submitted that the presumption in favour of the complainant
could have been raised under Section 138 of the..i’3.:ct”-i.t”th’ere
was a legally recoverable debt in respect of the
in question had been issued by th-e”acc.use’d. _VvIni’thellVabSen.cel’
of there being any proof of the transactilon
sale of land being proved» the.” coniplainant” antytl
corroborative evidence, the first— ap–pe’llate Convrt was justified
in coming to a conclusionlthatthe} in question was not
issued in respect’ of anylllegal liabii.loity.Van:dl’»’that the complaint
was rightly has __ais’o my attention to the
eviderlcellloi’i’th.e tolllpoint out that if at all there
was any traIl1sact’i.Vr’):_’n_:witl1…regard to sale of the land it was
between bprothéver of the accused and the complainant then,
V’ _ ‘cir;c.un1.stance’un–der which the accused had issued cheque
not been explained and as a result, initial
‘burden the complainant has not been discharged and
therefolrav the first appellate Court was justified
~ Atinholding that in the absence of there being proof with regard
it the transaction between the parties sand the
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circumstances under which the cheque was issued by the
accused, the first appellate Court was justified in disrflipssing
the complainant. He has also submitted that eVeVn_prioru:tolt«he
date of the cheque namely 15/2/200:3, .:¢.c§li§::;~;i:1t”‘
regarding the loss of cheque in questilo’1’1«has.ibeenl ‘inadeby the l
accused before the police as Well as ii-ttilmation was
the bank and it is on accoulnt–._of._the loss ‘ofA”i;tijat the
st0p–payment instructions was on if ‘l’.’3-/2,/’E2003. The
cheque is dated 20/2/ on 25/2/2003
which, according .__to if in respect of an
agreement.whvic]:iIl:i.s’;’.szud__to._haveiltakenmplace in 1995, which
agreernent ” isafriot if by “independent corroborative
evidence and hen’ee;. thefidefence put forth by the accused has
beenrightly.accepted’-hy’~t’he first appellate Court which order
‘~ call forVlanyiriterference in this appeal.
heard the learned counsel on both sides
a11dllonV.peru_sal of the material on record, the only point that
arises for my consideration is as to whether the order of the
V’ appellate Court calls for any interference in/uthis appeal.
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15. From the material on record, it is not in dispute
that Ex.P.1 which is the cheque bears the signature”-,oi’.._the
accused, which is marked as Ex.P.1{a). It
dispute that the said cheque was dishonoured respect is p
of which, Ex.P.2 -~ bank memo was i:ssi;:ed’agstati’11g’=that=ath«e
cheque was dishonoured on7ac_count._of
stopped by drawer and thereulvljbepingu insufficiejncyfi of funds.
Ex.P.3 is the legal i<h_a.s'"been vissltied by the
complainant and a recA¢iDs£_ Of acknowledged
and the reply A perusal of
Ex.D.3 m /'–7'.':.,' lmakes it apparent that
it wasfla' with regard to the sale of
seven of VpVlarid._»i11.V_j&:E3y..I\lo.9–1-¢£(Portion) of Idya Village,
which according. to: the cornplainant was owned by the mother
0fv-':cthe:p_Aaccaupsed Vlaniirsister and brother of the accused and
'h:adr'deVolved on them on the death of their father as
'legal they being co~sharers had agreed to sell the
lands the complainant and in respect of which part
A xconsideration of Rs.35,5G0/– had been received by the
accused and that on account of difference between the co»
f '§
*2,»
I3
sharers, the said agreement did not fructify into..___a sale
transaction but there was a compromise entered into–.l:jetir:{een
the parties and the complainant had agreed to'
of Rs.80,000/~ towards full and fina.l…settler_1ient" a_rnou_nt ' _
payable by the accused and in respectfoi lch'e€},'l\\ie.:in
question dated 15 / 2/ 2003 was..issued_. V
16. In respmlse fto– said’ notice, the
respondent ~»- accused by categorically
denying that thg§.g,__WaS.;;i”riy vttithllregard to the sale
of the aforesaid’ and that on account
of place, the cheque in
question __ __the accused in favour of the
complainant. put forth by the accused in the
reply’no_t1ce :1s«–.tha’tVllonlv’I2/ 2/ 2003 at about 5.00 pm. she was
pro’ceecE1i:11gVVl’ *J§{1tl’1 helrlllhusband on scooter and she lost her
purse ieointained cash and a blank cheque No.937’532
dfayyn on Bank, Suratkal Branch, Mangalore and that
she lodged a complaint on 13/2/2003 at 9 a.m. before
“1A:h_els«Ho of the Suratkal Police Station and that she had also
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issued stop~payn1ent instructions to Vi3’aya Bank, Suratkal
Branch on 13/ 2 / 2003 and that the said cheque leaf has been
misused by the complainant by filing a false cornplaint
against her. Therefore. from the reply notice itself. _ivt.b’ecornes
apparent that the accused had denied
between her and the complainant and also i1i’ti1e.:eVidencpe she” .
has also categorically stated that s_he::’was
any portion of Sy.No.9–l4{Pnrti.o_n) o’f._Ed”yaV
that there was a transaction between thelparties regard
to the sale of the said —lafnd ‘i7.(j’C».Li1t€d in a compromise
and the accusedpissuing Vthe.vch_eq:11e”.inl qi.ies’tion for a sum of
foruvlthe complaint filed by the
comp1a’ir.1ant.l of the matter. the initial burden
wascast oh’ the Vc’omA’plai*nant to prove that there was a sale
trairilsaciiion Aenteredinto between the parties and for the said
that the accused had issued a cheque for
}_ towards full and final settlement. Infact. at the
very first instance namely. in the reply notice, the accused
had-._denied that there was any transaction between the
parties. Therefore, the initial burden was cast on the
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complainant to lay the foundation for making out a case that
the cheque in question was issued towards discharge of a
legal liability by the accused and that the dishonour of the
cheque resulted in an offence under Section 138 of
17. On a perusal of the evidence of the 4_
is seen that no documents with regard to.'”t1;éLnsaction’._oi ‘ .
sale or compromise has been produ.ce<;'w ihfact. 'it_is the"~say'–:of
the complainant that after 'the'~..comp'1'omise,l'b..the._:'d–o.cu:ments.it
were returned. Even that the coiriplainaht has not
produced any independent.ev-idence"particularly, the evidence
of the witnesses. to the..«d.oc':1me;f;t_s'l of namely Bhaskar
Bhandvary ' could have spoken about the
transaction. – Furthef, according to the accused, she had no
I'I'g'1"1;lZ"iIl;'th€V pro_lperty,v' which was the subject matter of the
l' transaction 'Land the complainant in his evidence has
stated that he did not make any enquiry in the
Re'v__enue'Eiepartment about Sy.No.9-l=~'i and to a suggestion
made. that the signature on the cheque and the other details
whi_e.h were filled up are in different writing, he pifhas merely
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denied the same. On a perusal of Ex.P.1, it is seen that the
cheque bears the date 15/2/2003. However, E3xs.i3_’.”i
clearly indicate that on 12/2/2003, the cheqt1ie;l«.was”*io’st
intimation was given to the bank regarding’ lossaof ¢’he’que– on i _
13/2/2003 and also a Police Cdfflpiainjt
however, the contention of tfig-..g2ounse.} ‘for triellappellarit
these documents have been got:4_l:i}p:_forv.the.parplosefiof the case
and that the accused tzhesledoouments in order
to justify the defence cheque but that the
same does the ::th’eVlco:’hplainant. However,
what is to case is as to whether a
_inlvtaVour of the complainant at
the “«l’whether the complainant has
discharged llthcevlinitialiburtlen cast on him.
As already stated, no documents with regard to
A the been produced by the complainant and no
ind~epenvdent«’ oral evidence with regard to the agreement
enteredirlto between the parties has been produced. Infact,
the accused denied that she had nothing to do with the
3
xi’
“Vintended to be purchased by him i.e., Sy.No.9–}.4~
17
land in question, the revenue records which are public
records could have been produced before the Court..Vso_ras to
make out a case that the said land indeed _
accused and others and that there .was_–a–~triansa.ctior1 in.
respect of the said land. More overfinovyzhere ‘ian.’the-.evidenGf?cC.f
the complainant the sale considerationllfor thewland agri:-eds
be sold to the complainant state-C1.h”Thefllexridence of
the complainant is given by
him to the brother of amount. If that
be so. under;”Wi:at.” had issued a
cheque for.’ out in the evidence of
the to that in the legal notice
or in ‘:iVJf_»th.v_:e;”cioinplainant, details with regard to
the agreement’ such as the date on which the sale agreement
V. _ tvzi:$}”:en’terc.d intollandthe compromise talks held and in whose
vpreserlmézthtttlcompromise was concluded and as to whether
‘the’ifuvlplfivand’ulfinal settlement arrived at for a sum of
has not been stated. Infact. i.n the cross-
Aipeicamination, the complainant has stated that the land
stood in the
3;.
3 _r-. M»
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name of the mother of the accused, then there was no
explanation given by the complainant as to why the.eacct;sed
had issued the cheque and if according to the
the documents with regard to the transactions .. _\fifere’–l.i:fet_u1’n’ed .l
back, then to whom they were geiventy j;As_
though in the evidence twoe,persons’g\fiIlere m_eau§ned
witnesses to the agreement of salelrthey xi’rere”‘ndt examined by
the complainant. in complainant
has stated that in the year agreement and
subsequently! lapse of 8 years,
cheque .isi’e.no.:eAexplanation with regard to
Why bytuthlelvjaccused if the land stood
in thehante of. lorother of the accused had any
transaction” with ethe Aconzplllainant, it would have been natural
if issued——–the cheque. The complainant has also
.cateVgo’rical.v1y’stated that there was no other transaction
‘between accused and herself and that the sale transaction
was said to be in the year 1995. But either in the legal notice
» or ‘-in the evidence of the complainant, there is no reference to
‘?
‘E
./.,y~” [ .
19
the year in which the said transaction was said to have been
entered into.
19. At this stage, it is also relevant to note that the
accused has produced Exs.D.1 and 13.2 in order tojprid”J_e”‘the
loss of cheque on 12/ 2/ 2003 and the intimation
bank regarding loss of cheque andthecomplaintr._gi.yent4_’to if ~
police on 13 / 2 / 2003 in respect of Whi(:’hi theicomplainantlhas
not let in any evidence as such.”*-The contention of ‘themcounsel V L’
for the appellant that the accused:_ has consistently changed
her stand with regardvtoftfhe iss1;iané:–e_lo.f:’the cheque in favour
of the complainant by conc_o’cti11g La that she had lost
the cheque su_b’se_q–uently. by stating that she had
lost thecheque therefore. the said defence is
concfocteqd for ‘ay_oiding’ the punishment under the Act cannot
also befacdcepted because in the cross–examination of the
I categorically stated that it is only in respect
of the c.heqt§..effin question that she had signed and she admits
her signature on the said cheque. Therefore, the point as to
Vfflwhether the entire cheque book was lost or the cfiheque leaf in
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question was lost has no relevance si.nce it is the case of the
accused that the cheque in question was lost and in respect of
which Exs.D.i and [).2 came to be filed.
20. In the reply arguments, counseltheaappellant
has stated that in the event of
conclusion that the first appellatellflourtg ‘iii,
dismissing the complaint, the may to the
trial Court and an opporltunityllhe’ given-to the vconiplainant to
let in additional evidencelby pro’lduci_ng’–tAiielb’records pertaining
to the .tiarid..\:}§rhilch: was “aV_s1ibjec*ttmatter of agreement between
the partielsélis’ the said contention as only to be
noticed rejected “forI.’i’the simple reason that at the very
firstiinstance,’th–a_tv_is’, in reply to the legal notice issued by the
~ vco–rnplaiia.an.t,”*–the accused had taken a categorical stand that
‘there \§vas”_v»-notavgreenient entered into between the parties in
reslpectviofthe land in question and later. she had stated that
“she had no right, title and interest in respect of the said land.
View of the admission made by the accused, the contention
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that production of documents pertaining to the landhwould
prove the case of the complainant has to be rejected,» l.V”l_l”‘l1_e7f_act
remains that the initial burden was on the
prove the transaction between heApVparties”‘o.utw.plo1f: which’
transaction, the accused had issued thettcliveque Ain’*qucstion;V to
discharge a legal liability. I1′;tli_1__e absence of an3:f
proof regarding the transactionvlvin.lduestion.– plea made by
the counsel for the thatlproduction of
a revenue records complainant is
rejected. that the accused
had to in favour of the
cornplavilnant’ as no presumption can
be raisledulinlfavour:~ot”tlhe»»:complainant in the instant case.
The Vfurtherl oVbseV1’fvat’ions”ll of the trial Court that what is
_in»._a chec[u’e**”iVn the signature of the drawer and that
_ in the ‘instantcase, there was no necessity for signing a blank
cilelque andkceeping it with the accused are not correct. The
trial ~. ‘Court has also stated that it was not
necessary for the complainant to produce any record with
regard to the Sy. No. 9- 14 and that the
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evidence of the complainant — P.W.i had only minor
discrepancies and since the complainant had the address of
the accused, they were not strangers are also incorrect
reasoning to come to a conclusion that the defence
the accused is improbable. Enfact, the Apex
M/s.Kumar Exports -Vs- Shanna _Car1:iets”
(AIR 2009 so 1518) has stated that t;£ie~{iefence:to
in such cases has to be basedlV_on_the ‘probabilitiesgandflnot like, i’
that of a prosecution trying to prove axcase beyondvfreasonabie
doubt, in the contextvof ‘presurLtptionrv~r:ajsed under Section
139 of the Actvand by the Apex
Court to _a??.sta.tutory presumption, an accused is
not expected ‘to ~proye__:”iii’s defence beyond reasonable
doubtv as isilexpectedtbyv the complainant in criminal trial.
Qnfan lover’ appreciation of the evidence on record, I am of
that the first appellate Court was justified
settingadside the order of the trial Court.
inthe complaint under Section 374 of the Act by
./”Z
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21. Accordingly, the appeal being devoid of any _me:rit.
fails and is dismissed.
*mvs
S65Ajijk:1