IN THE HIGH Comm' 012* KARNATAKA ; Q
CIRCUIT BENCH AT DHARWAQ if " *
DATED THIS THE zom DAY Q1? >2'«IOVFjIk&B.'§'.§R % V
BEFORE'
THE HOWBLE MR'.J1_;sr1CE, 'N.ANi3§fi)A.... LA;
CRIMINAL APPEAL 80,392
B Em: __ % 'A H
Shivashankar s/o.Nec1a1can'-
Aged a})out4§T5«3ma _ 1 "
Pmprietor, M7,! 3. . V
&.Sons, Mr1:ysm3aya%.Mar1;»;:'*--.4AL '--
1 ' _ V % _ ' ...Appellant
(By S1i';'3l_1fi!;911$_;F.
AND; '« _ V %% %
V. _, 1- ':33/S-."h¥.G.Rathi
' - 5.: as Pea: m=.M.c.Yazx1
V V' ,I\'I£ai;;?s;:.;r«V1_%tx::4"I::. Ramdurg
~_ "Bclgé1u'rg ._Bi.S11ict
Rspmsentcd by its paxmers
Rep-ancients 2 to 3.
. Namyandas
,_ "Sio.Giridharilal Kathi
E Major, Ooc:Bus1'ne-as
T R[o.APMC Yard, Mahantesh Market
Ramdurg, Bclegaum Bistrict.
. Shrckant
S/o.Giridhari1al Rathi
Major, ()oc:Business '
R] o.APMC Yard, Mahantesh Market
Ramdurg, Belgaum District
Kamalkishore
S]o. Rathi
Major, Occzfiusinws " " V
R/o.APMC Yard,
Ramdurg, Belgaum
Major, oec:Bu.eancs,' -
R/o.APMC*'Y£t.f'd; A
Ramdurs» 1; %
(By S:-i_ fa}? V
Sri G.a..s1;asu;y; A'dx{.'-,3 V
filed under section 378(4)
Cr.P.C. éaide the judgment and order dated
by the Prl. CJ (Jr.Dn) and PIL JMFC,
in CC' §lO.338/ 2002 acquitting the respondents £91'
" _ th'§'iafl_";.é1;c1: 11/ S§'1'(~3=.'._¥...cv:'{' N.I.Act.
V' " T appeal coming on for admission. this day,
A the following:
JUDGMENT
The petitioner had filed a compiahztt u/3.200 Cr..P.C.
. iagainst the rcspondcnt alkgng an oficncc punishable under
Section 138 of the N.I.Act inter aiia contendmg that two
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AA
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cheques issued by respondent $1′ a sum of Rs.45,00G'{;-“‘e§ach
were dishonoumd on presentation. Dishonomwi-‘€~heqi1es«
wag;/followed by issuance ofstatutory notice, ‘
2. The respondents denied” T
cheque amount. On the othef ha;;d, 3 L’
amount due two cheques W to by a
pay order for a sum ¢f._i§’s,A1;.1o;;®o*;_;Ve .»13.s.1994. Thus,
the entire liability mxazuc
3. me Twas’ Aéceptod the pm of
__ and dismsaed the
complaie 1£._ under the cheques in
the accused Linda’ the pay order
. foe’ezAsum of Rs.1,10,00{)/ –. Themforc the
fins’ Court.
4,; E heard mm Counsel for pefitioner and
‘ ” é ” — V’ for respondents.
‘% 5. As coukl be seen from documents made available by
‘ S, pctifioner and respondents had series of business
transactions. Both of them had T
accounts. The respondent “used to V’
petitioner and make payments K 2
sometimes through banker ._
reply notice dated 17. 1O.2B§’ % V’
6. The learned Ae$udgg%k%§§s%
given by both parties that
had taken aware of the
fact that bc1th ;ra1f’tie$1_ books of accounts in
xespect place between them.
Tlie accepted Exs.D-15 and
S-165 ‘as the svtuateinefiits of accounts by the
A team’ zlar of business.
~. the records that Ex-s.D–I5 mt! 13-16 are
V -V the copies of smtement of accounts. The
1: had obyected’ for n;-:ce1vmg’ ‘ these documents in
éariiiefice. The learned trial judge 11% accepted these
VT “dbeuments by holding that they are being considered foa’
V A’ coilateral purposes and they an: admissible in evidence. The
A} A OE4(\A_ 5:,’/.~-e(g,\.
learned Judge has accepted the plea of
by the accuser}. ” M
7. In order to appreciate theik:
to state that respondent had Visgéfltacd ‘czheqtrgefi ;
Rs.45,000/- each. It is the oéiigfiatson df’z.t=.- :§pr$nd’é:pt that a
sum of Rs.1,I0,000I- ordcr to
Rs.45,(}0O/- any evidence
to prove which they had paid
excess have contended
that théy had Rs.20,000/- on some other
account details of such accounts;/’!’he
accusgg. any material or documentary
V. “evi§1é11;:c thgizfiaymcnt of excess sum of Rs.20,000/ –
~. well settled that primary evidence is the
_ _ best and it affords the best proof of fmts in
the parties mly upon contents of documents,
not be permitted to ma oral evidence. As per the
N . mg/L/’~”‘§'”‘”ej’v
:6:
rule of best evidence, the party shoukl
documents which is the pr1ma1y’ evidence. H ‘ L.
9. in terms of Sections 61 am
that contents of documents* m1;st ”
production of documents of the
in the egg.-gag “have maintained
books of ggd entries mlafing to
each taken placed between
them. i!§’9r.fl1eV to them, both the parties
have not écxnunts.
A judge has accepted the Phofiostat
of as if they are admissible 11/ 8.35 of the
Act. The Eearned triai judge instead of
«;_tIie oral evfldenoe, should have called upon the
«A ta produce primary evidence to pmve eonmnts of
ddpuments. . (U? 1;,” p._,-(? ‘
:7:
10. The learned Counsel for
has made available a copy of the judgment
0.S.No.207]1996 which Ielates’t1:r:A_ ‘dvcrydd
between the panics. This dmumcdt.y§&§
the learned triai judge wiii myd’
opinion, judgrnent mgdc xdin “_vO[S._No.Q0′}’,l dated
V 5′-‘rs
26.9.2006 has direct ‘is stayed by the
{lie -hdzaxned judge that
the !he..:Vdis_pa.1t¢:d chequns stood discharged
under sum of Rs.1,1€),000/- dated
13.5; £994 The Learned triai judge has
”
, receiving oral evidmce to prove contents
‘of learned trial judge has faibd to apply that
of’bc:§t3’~evidenm. The learned trial judge has acted upon
Agra} (Evidence imstcad of calfmg upon the parties to produce
evidence more panic’ ulariy when the paz1:xes’ have
_ _&ought to prove oontcnts ofboeks of accounts. In View ofthc
above discussion, impugned judgment cannot be stzstaincd.
‘\)>’,’-jxél-‘*’fi’/”_€1’\”»
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1 1. In the result, I pass the following order:
AP is med’
The impugned judgment is scyaside. _- ‘V — V
Matter is rcxraandcd
reconsideration in the light of -the gfigie L.
and in mcordancc with BW. V V _
Both the at, mace further