IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 17'" DAY OF AUGUS'1f"2£i)'1V£i)i'._i__::if A
BEFORE H H E
THE HON'BLE MRJUSTICE
CRIMINAL APPEA1__;NO.397
BETWEEN:
Rshivashankrappa,
S/OMa11urappa, A
Aged about 52 3/eays;-.
Occ:Agricu1tui?e, ._ . .
R/O Masur I?"OOac;'O.,"~. b
Shikaripurg. . ' 19'
(By sr{;J,M.Anii1i'1:;a:§§ar.i'Aiim ~ ?
AND:
Ass. A.bAanja.ppa, AAAAA
A is«,*oshivaj«iRao,
_ Aged' abquit .5'2._ye--ars,
Vathara,
Kuyabara Voigi;
I-Ianaga Taiuk,
ii ' T" V . ' Haveri District.
A i--..(Vii~3r §ri.G.S.Ba1agangadhar, Adv.)
AAPPELIJANT
..RESPONDENT
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C. praying to set aside the judgment in Cr1.A.NO.48/O6
A/’
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dt.l6.1.07 passed by the S.;l., FTC., Shimoga and consequently
confirm the judgment in C.C.No.360/04 passed by”—.the
C.J.(}r.Dn.) and ;ll\/IFC., at Shikaripura. _
This Criminal Appeal coming on for adrni.ssiori idav,’ C
the Court delivered the following:
,1UDGMEN’lr__ if if
The matter is taken up dispo.sal– stage of if
admission itself, to consider.. iherpames’;’
2. filedi Vjmfrigment passed by the
Sessions Sliirnoga, in Crl.A.No.48/06
dated the order passed by the Civil
judge (wit; & $:h’ilraripura in C.C.No.360/04.
V r. Court has convicted the accused–respondent
forjthe punishable under Section 138 of the Negotiable
Aplzistrtiiaments Act. In the appeal preferred before the Fast Track
if Shimoga, it has reversed the finding of the trial Court.
” V-“Hence, this appeal.
9/
at
4. A complaint has been filed by the appellant herein
against the respondent before the }MFC, Shikaripura,”wwh:ic.h
came to be registered in C.C.No.360/04, whereing::the.ilearneid” ‘
Magistrate, after enquiry, has conv§.cted”the ‘..acc11se’d_ forftheg
offence punishable under Section
instrument Act by order dated by of
Rs.3,000/~ and also to to the
complainant. Inthe Court, the
accused has. has borrowed
RS.75,0lQQ[fiTEi{1:C:i” iiniiithat regard. iie has
specifically borrowed a sum of Rs.10,000/–
from ‘Corporation during i996-97 of
com.pla’inant..is one of the partner. At that time, he
had as a collateral security for repayment of the
laon, but aifierdrepayment, the cheque at Ex.P1 was not returned
by the finance company. It is his defense that by misusing the
,.,said_if.cheque, the complainant being one of the Partners, has
A filed the complaint against the accused under Section 138 of the
Negotiable Instruments Act.
W
5. Heard.
6. it is the submission of the learned Cot1’nsei..fori” 9′
appellant-complainant that, if at al1,the’che_qtte ‘been’~~,
returned by the Finance Corporationat the relevant»,
time, there was no irnpedimenvtiddor the “‘acc’used ‘to “file a
complaint against the co’rnpany,.’_xinstevad,_ ‘kept quiet, but after
having borrowed aloan oAf..R.s,75,(.lQO/– frond:the’w”cornplainant, is
taking a different to”disio_yvn_t.h¢_ 1’iab1li’t’y.
7′,v.,Per4contraf’,”-itisthesnbntission of the learned Counsel
for the resp’on_devnt–xaccused.’that the alleged cheque is of the year
eyenddurin.g.«April l996)a fresh cheque book was
ai;r;sn~.em<"/
,_d_is'sned,. lap-pellant by the accused after almanac of the
the book pertaining to EXP}, which makes it
i"**.__V"'»clear that*EX.Pl was issued in the year 1995-96 and in the said
–.yea:’.’..only the appellant had taken loan from Lakshrnj Finance
_,_corporation and that) at no point of time, the accused has
borrowed the loan of Rs.75,000/– from the complainant nor
XV
issued a cheque. He has also tried to demonstrate that the
complainant has not pleaded his ignorance being one of the
Partners of Lakshmi Finance Corporation, regarding of
cheque by the accused as a collateral security. It is 1 V’
Ok
that EX.Pl was not given towards nhe;lieg’aiE.yg_ e.nforceable: debt},
rather, it has been given to Lakshmi F’inanr:e Corporation ‘as-~a’~
security, of which the complainanti’b:ein.g one”ofPai’tners has
misused the same, as is ii_.ss,i_ie–d_ on 1.32004 and
presented to the bank.
81;,Howe.vei1′,’:’:t~he .,lle’arn”e’;d’Clousnei for the appellant has
submitted thatlthe ac_cus_e’d,has never given a complaint against
-‘W,_thefinance.__Corpora.tion for having not returned the cheque
_lis’sue’d,by after clearance of the loan and < that even to
the legal issued, no reply has been sent by the accused.
In the case on hand, the accused, except taking the
~~contention that the cheque was not issued for having borrowed
the loan from the complainant, he had not specifically denied
WM
6
the fact of giving a cheque as a security to the loan availed from
Mfs.Lakshrni Finance Corporation and the probable expianation
given by the accused is that, the cheque obtained by the Fin”a.nce
Corporation as a security/ was not returned back after..re_pay_n~1ent”
of ioan and the cheque is of the year 1996 and the..ot:heri
bearing previous and ‘subsequent i1_un1b.ers1 of “E.x=..P’ivt”vwerea.’
honoured in the year 1996 oniyf “?he said ‘fact
case of the accused that the chequ_e_:n:1,1st..have.been given to the
Finance Corporation as a”‘–svect1rit_y;go}f’which, the complainant
being the Partneriof.the{Finan§:eCorporatiotiq ci.ai.ms that the
transaction is of tiiejyear 2003-U4’. When & probable answer
has been §1v.en.bv.the._’ac.ci1sed and also when there is no
“”~..Vspec’ijf3ic Edeniqai bv”the…compiainant as to the issuance of the
_chcq_ue_ as security to the Finance Corporation, the version of
the .__4cotnpI.a’1nant has not been ‘accepted in View of the
‘ ‘-»preponderance of probabilities that the transaction wouid not be
_Caeces_s’ariiy there between the parties and that the cheque must-
~h–a:ve been misused by the complainant and has been presented.
XXV’
Accordingly, the lower appellate Court has reversed the finding
of the trial Court.
10. The trial Court, referring”ito”‘Sectiion_:.iliLi9_ of-.theT_p
Negotiable Instruments Act, has drat;;{ni”the pre_2§ufrtptioai’in”~
favour of the complainant, noting”s’tliat thereis the
signature of the accused accordingly, held
him guilty of the o_ffence.,._ regard to the
probable appellate Court
has ‘: stating that the actual
transaction the complainant and the
accused. ‘ili’heV:*e.,isl find fault with the case of the
‘~ ._:Ap.pea1 taus.t …. .. n
it ll, appeal is dismissed
Bkp