High Court Karnataka High Court

S R Shantharam S/O S B Rajanna Setty vs R Sathish Kumar S/O Late K Ramaiah on 3 December, 2008

Karnataka High Court
S R Shantharam S/O S B Rajanna Setty vs R Sathish Kumar S/O Late K Ramaiah on 3 December, 2008
Author: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE...'»: "-:"D:"~A. "-

DATED THIS THE 3RD DAY OF DECEMBER 2008   

BEFORE

THE HON'BLE MR. JUSTICE JVAWA§._RAIHzIM . 2 "

CRL.R.P. NO. 868/200$ 't:/v_\£
CRL.R.P. NO.869/2(_)__Q'8..v_ 

BETWEEN :

S R SHANTHARAM.»  '

S/O S B RAJANNASETTYI

MA3OR   .   
R/A KENGERI SAT.E'L'L~ITE 'f.  
BANGALORE-60"-~  A   "

, _ C, _-,. PuE§T1T'I:Qi\'lER"'i'?€ '&IRL.R.P.868/O8

S R <3ORA;.A.}<RISH~:\tA.  
S/O S B RAJANNA"SETIY..  A
MAJOR,  A 7   
  R/A KENOER1 SATELLITE TOWN
* '~  ~  ..... 14 v
 A    1=»ETIT:oNER IN CRL.R.P.869/O8
(By 'SH R'RARAS--..3AI,N,SV ADV.)

 AAMD :

 (By Sri C N RAJU, ADV.)

 »R SATHISH KUMAR
»  ,S,'.QA LATE" K RAMAIAH
 =iMAJOR
_  R,!AT--ELAT NO 4, ANGEL'S PALACE APARTMENTS
A  3/T1, BERLI STREET CROSS
.. '' LANGFORD TOWN
 BANGALORE-25
'  RESPONDENT IN BOTH CASES

 



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CRL.R.P. 868/08 FILED U/S.401 R/W 482 CR.P.C_4v!3VY~.._:THE

ADVOCATE FOR THE PETITIONER PRAYING T.H.ATf"THI'sx
HON'BLE COURT MAY BE PLEASED TO sET_..LASIOE1"----TfHE_'I.
JUDGMENT PASSED IN C.C.NO.584/07 IN THE FILE OE 
XXXVI ADDL. CITY CIVIL AND s.J, 8ANGALO'R~E..iAND. ALSO 
ORDER IN C.C.NO.329/04, ON THE' FILEOF Ti;-tE_XV A'DDL;:

C.M.M, BANGALORE. 

CRL.R.P. 869/O8 FILED U/S.40-1r"R/W "482 'CP{._=P:CVy4'Vu5i5Y'VTHE V

ADVOCATE FOR THE RETI"r1ON"ER PRAYINI3 THAT "THIS
HON'BLE COURT MAY' PLEASED 'TO sET"'As'IDE THE
JUDGMENT PASSED IN».C.C.NOL;_585-/_of7'IN THE FILE OF
XXXVI ADDL. CITY CIVIL AND 513:," BANCSXALQRE AND ALSO
ORDER IN C.C.No..111/04,L.O*N THE FIL_E"'O,Lr'THE XV ADDL.
C.M.M, BANGA_L.CIR_E;. I    

These petitiOns':cO'r_hinc Vavdimission this day, the court
made the' 'f0:~ioAV~;eing "ii:   

'iSh@QER

Theseitwo VreVis~iVOns~'ii'are by the convicted accused

 the }'_'udgrn'ents.«in Cri.As.584/O7 and 585/07 passed

ii'.,onf5;s,%2IoyO8]m[ the XXXVI Addl. City Civii & Sessions Judge,

Bangaléoreé, '.V"'Aic'i_iI<:.si"I1VissirIg the -appeals filed by them and

'77,.,,,.-.'V§I|owing V"C,RV.Ps.31O/07 and 311/O7 filed by the respondent

V' '..f_anidii"modifying the judgments of the triai court in C.C.

 ____"'i:"NO5.3'29/04 and C.C.No.111/O4 on the file of XV Addl. Chief

u"'~.i~v'ietropolitan Magistrate, Bangaiore, dated 26.4.2007

whereby the petitioners were convicted for the offence

 



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punishable under Section 138, Negotiable Instrumerits,l_lAct

and sentenced to pay amounts stated therein. 

2. The matter is listed for admis.s.i_on.  3'

learned counsel for the petitioners. i1'_'_an'i satisfiediu

requires reconsideration. Hence",-..petitions are'..ad'r1j1i'ttediand'» 3'

with the consent of the__|earned_._c:ou_ns.e| on i3o.t_h sides, it is

taken up for final disposlaifs. 

3. The factuai rnatrix' "which petitioners

were prosec_u-tied  u!t.injiat.e|y_<'1'ound.guilty of the offence
a}.,one .F2."S&ti:sh,,,'Kurnar,-'complainant in c.c.329/04

was engaged Vin_.retai,l:°3.s'ale of wine, while accused

 Shantaram wa's~.._,Vt:he wholesaler. The latter borrowed

  the complainant agreeing to repay the

  regard issued two cheques for

 Rs.5.,'00,'000/it each both dated 28.10.2003 towards

 of liability. On presentation, the cheques were

r"etu'rn'ed dishonoured on 5.11.2003 for 'insufficiency of

3 'funds', necessitating issuance of statutory notice on

17.11.2003 which was served on the petitioner accused, but

 

 



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it held the debt had to be discharged and since the..wh:'ol»e~~.of

the debt was not repaid, he was held to have  ~

offence. So far as sentence is conce.rn_ed, prey/a.iVievd_ ii"

on the mind of thejudge and he directedctheiiaccusedi'

fine of Rs.7,60,000/- (C.C;:3'2.9./O4")"v.aiid' =es.e,se,eeo/-T

(C.C.111/O4).

d) Petitioners ivI1""-..V:'f)Oti'?p V{ca_s'e'si',':"assailed the said
judgment, whileétheh com'p'iainant with the
quantum of:_  and 311/O7.
The iearn_e_dV_a'~pp'eVi1i~a:t_e"'3u_dc§:ei  the grounds urged
by both'  -'with the complainant and

aiiowed thec'revision"pietiitionés, dismissing the appeals filed

 by  uaccusedib enhanced the sentence in each case,

  the:a.r:cused to pay Rs.10,00,000/- in each case.

Ag_a'iins«t VVt'ite'v_v.saiid"judgments, accused are before this court,

V _ whiie"'the.V:corri'piainant has not chosen to initiate any further

it  .sl;ega!..actVion.

  Sri Paras Jain, iearned counsel for the petitioners in

uifboth cases, referring to the evidence of the accused in

if 
/"A

 



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documents have to be accepted as executed
complainant or disbelieved. Therefore, it 
that the finding of the trial cou__rt._on 
remained undisturbed. However, a'ppro_acij 
court that complainants visi_o'n,_ shtouled  is 
erroneous in View of the  in the
case of IVI.S.NARAYANvA~...F'lE,l\i()l'%i'  05 KERALA
(AIR 2006 SC 3366)  'referring to
its earlier   ra - 45)

45. In-.,Hite.;n P. Dalai v,__Bratindranath Banerjee
[(vl2'O'O1).,6,SCC"i.6]',,a' 3-Judge Bench of this Court

heid thatalthouigh..,i;;y....re-ason of Sections 138 and

139 of Vthe'«.'Act,~_.th,e,presumption of law as
distinguisheci from presumption of fact is drawn,

the coL.irt"has_ no other option but to draw the
same in "every case where the factual basis of
 _ffrai's,irig_ the "pi*--e--su'mption is established. Pal, J.

‘ ‘ sp’eai:.in’g._ for a 3–Judge Bench, however, opined:

__ . Vf’~3f,…~..IV;;;;”Presumptions are rules of evidence
“and ‘d-i3_ir’;not conflict with the presumption of
“~.inn’ocen’ce, because by the latter, all that is
rneant is that the prosecution is obliged to prove
.. the case against the accused beyond reasonabie
, “«doubt. The obligation on the prosecution may be

-discharged with the help of presumptions of law
or fact unless the accused adduces evidence
showing the reasonable possibility of the non-
existence of the presumed fact.

In other words, provided the facts required to
form the basis of a presumption of iaw exist, no

i2

received from the accused. Even otherwise, the conjplja-inia_nt

had failed to account for the money recovered .

to D3 in c.c.329/04 and Exs.D2 to as in c.c’;1rijj/io4~}:1ii,,thev

circumstances, the allegation of “the;”co5m’;:.l,ai-na’nt'”‘i:s..__not

convincing and at the most, it_co_uld tie ‘held that,jth,efe:’§

transaction between him and th_e’p.etit,i_oners.«.:1:n V}

9. To sustain N.I. Act,
existence of as be proved. In
the case or ‘j1\imvAol-rARAN M.J. &
ANOTI:-i’E%R’ the apex court, after
accepting the about issuance of

cheque tow’a.rd’s .|ia_bil~i~ty’,~.-“held that the complainant must

that onV’the*date of presenting the cheque, the

_’deb:t’0r”l~iabil’iity’ was existing. In the instant case, it was the

dlutyyléof _t.h’e’i__cbmplainant to prove that the debt or legal

l’,_|iabi|ityVstibsisted as on the date of when the cheques were

A”i,”_prese_nted. Except producing the cheques, bank

endorsement and copy of legal notice, there is nothing to

show that the debt/legal liability existed. On the other

hand, the accused have produced receipts and also reply

14

Metropolitan Magistrate, Bangalore, dated 26.4.2007 are set

aside. The accused in both the cases are absolved of

charges levelled under Section 138, N1. Act, V.

amount deposited, if any, is ordered to be:’»refL:gnd.ed ‘- ‘A

accused.

vgh*