IN THE HIGH COURT OF KARNATAKA AT BANG/\LOR§ Dated this the 13"' day of August, 2010 C Before THE HON'BLE MR JUSTICE HULUYADI « _ _: C' Criminal/Appeal 14231] 29071 C' " C Between: A' ll Parashuram Meghraj Business, # 67, 27"' Cross Cubbonpet Main Road V * " Bangalore 2 C /Appellant (By Sri Narasingasa P Singri, if V And: Smt Gangamrna W/o 'C7_bil;kaswan1y'. h # 590, Near Appollo Clonvreet School " 40 Ft. Road, Srigandha Nagar" _ 3 _ 4' V Bangalore 560 091-, = V Respondent :.(By._Sri Aiélomaslzekar, hAdv-..).----« - C under S378 A of the Code of Criminal Procedure praying 'E-oe.onvi"<';tV,_the_'r*espondent of the offence alleged by reversing the vjvudgmerlt dated .I'3l§.3:2007 in CC l2496/2006 by the XV Addl.CMM, Banga1ore';-- 1 followilig: _ .. x'i"'he_uAprl)ea1 coming on for Hearing this day, Court delivered the #1,,/C JUDGMENT
Appeal is by the complainant assailing the order pas:;edVd.l_j_yi1I’th:e
xv Addl. CMM, Bangalore in cc 12496/2006 disniissi.ng”_t’he Vco:ruplaiint’i A
and acquitting the accused for the offence pinnishable under’S.l’38
Negotiable instruments Act.
According to the complainant,.he~._has lent the ”
accused during December 2005 and the”‘aec_n-sed-»e_had promisevd to repay
the said amount within two months and’ since, noevpayrfrent was made, on
demand, she~issued; for a ‘surri”of–lis.76,620/- dated 15.2.2006
drawn on l3ranch, Bangalore. When the
same was presented forVpa.yrnent;..-due to ‘insufficient funds’, the cheque
:_.«’was_dishoi:ored. After issuin-g’legal notice, a complaint was filed. After
inquiry; “reiyi’ng°uponT the decision of the Supreme Court in the case of C
g./._v.,vAnthony’Vs K’ (;”ej;gd§havan Nair . AIR 2003 SC 182, {stating that the
coniplajnant has not discharged the burden regarding payment of money,
thehial court dismissed the complaint against which, this appeal is filed
. –hyitheigicomplainant.
W
Heard the counsel representing the parties.
According to the appellant’s counsel, the appellant .
respondent are business people. The respondent has bo’ri’ow:ed a-sum of
Rs.75,000/- for the purpose of improving her:_busi1ie.ss of
and towards repayment, a cheque was’«-issued ‘which, presentaltion, –. ‘
came to be dishonored for ‘insufficient funds” and hence,_theVco:mplaint
was filed. The trial court has tal{en_ an view stating that the
complainant has not discharged”the–lju.rden”-by exarriivning the person in
whose presence the.c-ompjlainant: is said to have given the amount, rather,
the initial pi=esurnptioln_*v is,_i131,favoiur.,_of the appellant as per S.l39 of the
Negotiable Instmnaents Act’;’l.,}’.cc”o.rdirig to the respondent, she had given
a chequegto one llanurnanthappa and the said Hanurnanthappa had
cheque while giving a consent letter. If at all,
such” a letter if she had given a cheque to Hanumanthappa,
she could~–hav_e well examined Hanumanthappa. In the absence of
“l.vt.he._usame_, there is probable evidence to disbelieve the version of the
respo’:1den’t. The trial court erred in acquitting the accused and
accordingly, learned counsel has sought for allowing the appeal.
Jfp»
According to the counsel representing the accused, she
approached Hanumanthappa and not the appellant and she had borrowed
a sum of Rs.50,000/– from him. He in turn, had arranged
his friend Muralidhar and after taking two blank cheques. .-Biut, V’
approached, neither Hanumanthappa paid the~~amounTt: novr”re.turned[‘Ihev..
cheques. However, subsequently he had agreedizandii execnt’ed,va..con’se.nt’».
letter for returning the cheques which; l1o_vveve1′, w’ei’e’not1fetu~rned’; it
The contention of the appeillanti’s_Ve’ounselvv:is,.V:ifat all the cheque
was given to Hanurna.ntha_ppa;_’ and ‘f:°om”«.gvhom the complainant has
collected it, she couldiiiiaveivery examined the said Hanutnanthappa
regarding issuance of ‘ cheque _ is-taiting that it was not issued to the
appellant but’, to Hanuinanthappa.
._Ev_en3 the respondent, Hanumanthappa had filed a
false case’-.th1’o’ugh”‘the complainant without returning the cheques and
‘ s’wa1;”c»u: making ‘payment even after receiving the amount.
»./fir’
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The Apex court in the case of Rangappa Vs Mohan —– AIR 2001
SC 1898 has held that the initial presumption of a legally enforceable
debt is in favour of the complainant, it is for the respondent to.d’ispro\}e,
the same by probable evidence.
In the case on hand, the contention tha_t.t.he_acc1:se’d’haS’notisstled
the cheque to the complainant and rather, it:’was1’_tot~one’ Ha1iuir.anth*appa_:
and the said Hanurnanthappa got fi1ed__a”~case through the AC+’A)_vI1’1’f’«l1.3.ii’l3I1|§, r i’
cannot be accepted in view of the fact:fthat.._vshe ‘failed, to examine
Hanumanthappa nor got issued”‘s’ummo,;)S;:,,tliroijgh.thecourt to examine
him, to deny the trariisactgionp such being the case, in the absence
of such evidenceof Hanumant_happa’regarding cheques being received,
the probable version of the complainant has to be accepted.
. ‘ln_VtneVci.:carr1stances, the impugned order of acquittal is set aside.
The eonuicted to pay a sum of Rs.76,620/- within four
months~at1d i’n_de1″ault, to undergo simple imprisonment for three months
ial’so_toVpay fine of Rs.2,000/– and in default, to undergo simple
irriprisonment for one month.
An
Accordingly, the appeafi is allowed in part. Send back the records,’
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