IN THE HIGH mum op KARNATAKA AT 5 é *
DATED mus THE 1013 DAY 03>'
BEFORE A Q V
THE H{)N'BLE MR.JUS'§'E§§E.
CRIMINAL APPEAL N_Qs.37 we
39
R DEENA 4
S/0 LATE C " ' ._
AGED * V
R,/Q NO.237'0, _ _
'A5 BLOCK, Ii STAGE. ' -
BANGALORE5fi0«.OI0- T' ~ ,» APPELIANNS)
* [COMMON IN ALL
THE APPEALS!
ray ,a;M§.s. s NAGARAJA. ADV. )
' as/0 SQUNDARMMQE
AGED Afloat? ésfmaars,
_ . '_ _w«:._>s2mNcms mam:
.x fi;Afie5Fa&i3A3£R;
an:*.~4so:«:..TowN BRANCH
'BANGALGRE RESPONDENII8}
(common IN ALL
THE APPEALS)
T (By '$311'/Smt : c a mum, ADV. FOR R1--SD,AI)V.)
iiiiii
THESE CRL-.As. ARE FILED U/S. 378 CR.P.C BY THE
A£)VOC.A'I'E FOR THE APPELLANT PRAYING THAT 'l'HiS HONBLE
42:-
coum' MAY BE PLEASED TO SET ASIDE THE 0129159 13:3':-~._
ACQUITTAL PASSED BY THE xxx ADDL. C.M.M., BANGa..~Lo.RE'__'_:-§:~ '
CC.NO. 31175/2002 {IN CRL.A.NO.3'?'/05), ocNo.31':4'fi6/Vozéfére 4_
CRL.A.N0.38/05), oc m.:m77/02 (IN (;§2L.A.No;39,é[o_5;"'~AN:) " 'V
cc.No.31178/02 an CRL.A.NO.40/053 T_
THE RESPONDEN"I'--ACCUSED FOR THE OF'FfE§!(3i§ P/'U; s... 13:8
NJ. ACT.
THESE APPEALS comm H_EARiNG_ DAY,
are same in an
the four c and in older
§o avoid and law, the appeals are 1%
disposed of by a (roman judwmt
four appeals are filed by an
" __;1:3§11cces'.'4" cm plainant questlomn' ' g the 1cgal1ty' mid
the order of acquitm} passed by the 19"'
i'%%i%%'VjLk%Add1;'% ¢§M.M. Bangalore, in C.C.Nos.3lI75/2002 to
V ' ~ A31L;§3/2002.
3. The case of the appellant is that the mspondant
borrmved a sum of Rs.1,55,000/--~ on 10/£1/1999 and
1'; ' /f
promised to repay the said hand loan within one yea?
to pay 'mte1r*e-st at 24% p.23. The
respondent demanded for .
and since tlm respondent wasV.;:1t:st_ i1:1′ ‘a.
the entire loml, he i.e., LML Vespa and Yamaha for
Rs.6{),0(){t_/- of the loan amount of
Rs.l,55,0t)’t}f-1″ pay the balance of
_Rs.95,'()_£’)0/Ae months. Again when the
for money, reepondent iwued four
-. When the said cheques were
H bank it was dishonoumd as ‘funds
account clomd’. Thexefam, a notice came
to the respondent demanding repayment of
amount, but inspite of serv1ce’ of notaec,’
‘fespondcnt did not repay the mnotmt. Thcrcfim, cases
came to be filed by the appellant agjnst the respondent
for the offence punishable under Sectien £38 at’
Negotiable Instruments Act.
4. The trial Court after takilg
summons to the respondent
summons, the respondent appeafed ‘V *’
in an the four cases of the
complaint 1:; Q; . the appellant
examined the docummats
E’:xs.P.l the argmnents and after
perusal of ma’ 1 Court cnterta1ned’ a
_doubt ” gaLbu:1t of the cheque for lcwfly
and dismissed the complaint and
for an oflimoe
Sectistm 138 of the Negotiable
Act. A@’i€ved by the said ouzlcr, the
filed these four appeals praying’ to set made’ the
‘ “e$ifdéi’cfaoquittai mssed by the trial Court.
5. Heard the arguments of the learnad counsel for
theappellant.Evcnthoughnotioehasbeense1vedcnthe
% were not issued to the
V k 2 and no documentary evidence 1%
.4 . j, ‘(Sn record that thaw cheques were issued an
V ‘ r:;mj’: Mere filing of afidavfi by way of an cadence’
sumcient to hold that the respondent has rcbutted
respondent in all the appeals, he
5. It is argued by the 1″«:ih:ii:$ejj:”f:§iV:i”t!;é»1..jA
appe- Kant that the trial Court nit’ -vi %
the evidence in mcondjng its
R.W.l himself has admitted fie
which were given to
the appellant -£9 itself is an
admission. L to have mkcn this
aspact into to have comr1cted’ the
appengnt bugraaed ;:o”d§_:@o thereby wrongly anaxymd
is argued that the burden sf pmof
the prvwumpfion avaiiable favour of the appelimn.
! /”E
Therefore, the bmtlen lies on the re’ »
prove that he has not borrowed
appellant and the cheques were to u
been misused by the appellant %eet§e1¢ a
Therefore, the trial ‘ng the
evidence and has Acome t:.\..:e::wpervex’s:c. in holding
that the cneqggg but not to this
appellant’ “”” 2
7. arguments of the learned
counsel Jfiall these cases and afier
gar evidence we on ed, the
egg-gse-3.’: , _ for my considcrattbn and decision is
and order of acquittal pawed by the
ma: pw arse, Incorrect’ and illegal?
” Tfic defence taken by the respondent during’ the
tit? he had a l1I’$lSaCtIO1]’ with’ one Kamaraj Wm is
eier and brother of the appellant, that he walled’
of Rs.95,ooo/– from the sax!’ Icamamj and issued’
cheques in question in favour ofthe said Kamrag during
5%
,.»~’
amount that the two vehicles 3
bearing Regn.No.KA 03
beating Regn.No.KA 04 W to the
said Kamaraj towards «aim the
appellant filed the falqgg. course, a
s%tion wag’ V’ jlant that he Ind
issued 4 and the
same next question aw. 1 has
it that the 4 chques wane
__ the ‘ on that Kamaraj
§ b1m1′ 1: cbequm apart mu: 2 winches’ , R ‘m for
to mine his own bmther whcflxcr
the respondent and the mid Kmaraj. The
Qi-cspoudent cammt be called to mine Kamaraj. Since
thesa1dKamaraj1mppcnstohethebmthc1’oi’thc
appallant, he may not support the respondent.
mspomdent was due in a sum of Rs.$}5;,OI30_(
balance amount of hand loan,
taken cheques for Rs.95,000/~
i.c., Rs.50,000/~. ‘I’tn:x’e
by the appellant as to for the
lesser amount due in a
sum of dispute with read
to the The respondent
has not to by the appelhnt and
is ngtgjagm. mg.’ the cheques mm by an
xaespmk % at the appellant but not in favour
is none oma imn the bmmcr ofthe
d’ the rwpondent haein clearly
A .*.c___s he himself has clawed all the installmzta
J mmpaamm If really the xmmm: had borrowed
oomsion fertlierespolxderxttohsndcsrerhistwovelliclcs
139 of the Act is available for
i when MMMMM & the respondent] accused ms
to prove his case. Non
of the bmthcr of me appellant and non
of my document for lending amount no the
_ V and non ofiering any xwnahde explanation’
respondent to hand over his two vehizlm to the
to me another ofthc accused, in part &
amount. The fact that AV
vehicles to the brother of
admitted by the appellant. –a%%m ‘km; ,3; the
prestmlption avaflgbic but the
appellant has to prove his
case. analyzed and
apprecxm record. In a case
under mmmcm Act,
brothszr of the appellant and further mm ofiering any
M M»