IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 27"' day of September, 2010
Before
THE HON'BLE MR JUSTICE HULUVADI G" d ' '
Criminal Appeal I4I;;/ '7
Between: 1 A.
Mr Harish Govind, 34 yrs
S/o T N Govindan Kutty
Partner of M/s Pioneer Enterprises
Maidan 111, Cross Road V 5 _ V ~ ._' _
Mangalore ' * Appellant
(By Sri P P Hegde, Adi/.') "
And: """ h M
Mr Rajesh Prabhu ' d
S/o Narayana Prabhu ' . A _
R/21 # 23-3 3--I283f'«I.V, Monkey'Stan.d
Attavar, Maiagalore Respondent
'{IV3A3'}:'Sri_ \r1§'1?.§vajd"it.3hetty, Adv.)
.' under 3378(4) of the Code of Criminal Procedure
Vvdvpraying "to set aside the judgment of acquittal dated 4.1.2.2007 in
_ 4(4jrio._A.264/'2~005; by the Fast Track Court I, D K, Mangalore.
Appeal coming on for Hearing this day, Court delivered the
_V fo.I--Iowing:
l\.'I
JUDGMENT
Appeal is by the complainant assailing the order of the Fast’T_raek
Court I, Mangalore in Cri.A 264/2005 on 4.12.2007.
The complainant filed a complaint under S. 138 of .
Instruments Act against the accused for the dishonour’oi’ elie_q,uie’t.sa’id to
be issued towards a legally enforceable debt ‘o1=i_’i
Mangalore Coeoperative Town Bank’l;_td.,VMang-alore., to the
complainant, the accused having purcli_a_sed_ty.res, towards payment of
the same, liaditisxuied a ici13eque..w–hich ‘c–ame’°to be returned for want of
sufficient fu’n_ds”. pi DeSi;’Jiit§,s4 ofilegal notice, payment was not
made. The trial ‘court a’:?te1*.inq«i,J.ii:’y, convicted the accused. Th.e trial
“court that ithe.,co:.1′:plainant who is working for the Firm, is
also worl§in_g’pa’1*t.ner._and the cheque was issued in the name of Pioneer
._ Enterprises being represented by the working partner. it has
also noted thenauthorisation of the partnership which authorised PWI to
affairs of the business. Ultimately, the trial judge has
___c’onvieted the accused to pay an amount of Rs.64,000/- and default
A? ‘sentence of two months against which, in the appeal preferred by the
is
complainant, on the ground that there is no authorisation prodaoed–.and
also relying upon some of the decisions of the Apex
upon the ratio laid down in M S Narayana Manon @ _&
Kerala -~ 2006(3) Crimes 1177, holding thatthe accused
presumption, the appellate court reversed the finding of tri3i’cot1–n’_”v, V
Heard the counsel representing the L’ ‘
What is r1oticeti’i.s;,”so far as = service of notice is concerned, the
appellate court has op§ned”‘-that”–ali’tvs.is’*–dnly’.,served. The stand of the
accused is, the cheqtaavt{as.,issi1ed.,as _se_Cui’ity previously and it was not
issued towards a ltranslactiozsg is to be noticed is, despite the stand
taken thatthe cheqae was given as security, when there is material
~,evidenc”e” onhnirecéord to show that the accused has purchased some
material i,Vf’the ai11o§~1ati.s.notpaid, necessarily the cheque Wh.ic_h was’.
given and 1ef_{‘witli–‘ the complainant as security has been made use of by
hi :ithe”‘comp£ai.i1vaiit for re_aii_zi_ng’his dues, -Which’_is legally enforceable and,
‘e32’e11Vif–»a signed blank cheque is g’iven,’n_ecess-arily remainitig particulars
‘:j’a;=e..fi.Eied up if some payments are found due in the records to show that
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accused had purchased some material and had not made payment.
Further, if the accused had made payment, he could have produced
receipts and if the cheque is made use of by the complainant, there was
no impediment for the accused to produce certain receipts to ..si1ofvi-<._the
payments made. Though it is the case of the accused_*'Ehat,Af
purchase of tyres. he has made payrnent,__necessar_ily itiierie gno-_ V
impediment for him to produce the receipt.
In the instant case, the defenseot’-the accused is that,’ ichegue_ewas
given as security. But, there is no docurrrent p.ijoduced..b_y him} to show
that paymentimade byiI*heyv_aecused”w_as to’-«vards purchase of tyres. There
are said to be tyaoiitransactionis _.i’ for Rs.44,000/– and another for
Rs.20,0OO/5; ‘V In respe_ct”of these two transactions, receipts are not
:’p1_*oducedi” receipts have not been issued on the ground that
the icheqtie and till its realization. The appellate court
opined that th-eraccount maintained has not been produced. Ex.P10
1». are saidito be produced which are said to be maintained in the
regular course. Without looking into the same, the appellate court has
i forinedan opinion relying upon Narayanana Menon’s case, when a case
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is not made out by the compiainant against the accused. in the case on
hand, when documents are produced by way of accounts nece.ssari’l’yT the
appellate court ought not to have differed with the view taE<en~~by; tea;
court in convicting and sentencing the accused.
Hence, the appeai is ailowed. Imp-ugned Ru
Accused is directed to make payment
Rs.4,000/– shat: be forfeited to the Stateand Rs;e4,oaQ/Livshanbapaid £0 = L’
the complainant. Amount shail, be paidi.\x.ri.thi–n foiir weeks;.and.. default,
too undergo sirnpie im;3risonrnent’ for t\x_1_oi’;’n§;onth${ . %
sar-
Iudqe