IN THE HIGH COURT OF KARNATAKA
CERCUIT BENCH AT DHARWAD
DATED THIS THE 13*" DAY GF AUGUST,
BEFGRE
THE HONBLE MR.}USTICE=.A1}AW--"°}I3"TRAEHIIVI M
CRIMINAL APPEAEND.2625;'2_e0.E3»""'7 1.
BETWEEN:
SMTRAMAL, --_
vv/0 RAMACHANDRA HuTAr3:,
AGE: MAJDR.
occ: MONEY LENDI-NG :3us1[\;.EsrS';~.r"_-.._ ' A
RES1DENTOFHUEg1L»1._V ' "
...APPELLANTS
(By Sri.R.B. CVQT:.tr;aVctor,' .Advvo,_cate)
AND: D _ . .
SHAMSDDDIE-T, '
S/O MOHAMMAD Hu1SS.A'1:\i."--~'sAvANuR,
AGE: :EvEAe]AOR. ' ' -
- TDCC»:*eU$'xN.EEs§,AE DDDDD .. .
ER/Q EAMADAERACHAWL,
{3AN"ESHvP4ET;H,, AHDBLI.
A ...RESPONDENT
(By. S’:T’i.AE”:am:f:=:(*E’ Ali Rahiman Shah, Advocate)
‘”§.hi”S~;_cr}minaE appeai is fiEed u/s 378 of Cr.P.C. praying
.E;t’e.rcea%:T for the entire records in C.C.No.772/05 on the fife of
“the Mada. cm: Judge (JLDR) and JMFC Court, Hubli, and
c’t,.rT4§/’t<':Et: the respondent/accused for offence u/5 138 of
Neeigotiabie Instruments Aéii and etc.
.4')
clause (lo) of section 138 of Negotiable Instruments Act, was
not complied.
4. The learned jurisdictional Magistrate.-uaiftetil:’al<i-ngvit =
cognizance secured presence of the accused i:§.;§3»nled4_'_the._V it
charge and submitted that borr_ow–ed_u
Rs.40,000/~ from the petitioner_pLit_%the.'petitionier"h;a'dV»tai0,000/~ lElCiUd1I’lg..iHtE3E”€S’C.:-::Sii”i~’:ift”f iieef choice
he issued cheque fork’ cheque on
presentation bounced. of cheque
and also hguvtwcontends that the
cheque f’:’1to»i. was subject of
proceedvings in in which he was convicted
on plea ofxg«.ui%lt,. ‘Vii-le4V’s_1J’bi:’:h’its that since the petitioner has
.–v«.g_aireac-icy obtained”‘an__o_tcler against him, the present cheque
whiichgw.avs<tal§en__as additional cheque along with the cheque
in"qis-estion".fwasVunenforceabie. In short, the defence was
Igthat 't'pg"'two4'cheques were obtained by the complainant for
eioxanitraniisactiori of Rs.40,000/–. The accused had admitted
— oineicheque for Rs.60,000/~ and did not oppose prosecution
ttiereto, but he opposed the misuse of 2″” cheque. Since
3~9/
4
the 2″” cheque was also bounced he contends he was not
liabie for prosecution in this case.
5. To establish his case, the com.p.l_ai»n.an’t~dis
examined as PW.1 and placed reliance _
The accused also examined himself as”E)’~.Avi.’1._ a~ind.__relied”‘oVn 3*’
documents.
6. The learned trial con.si’der’iintgi’_=theweiridencell
of both sides heid thatthe ctialrge’j’aVo”a.i._nst re’s’po’ndent was
not proved in the mannei?.”knovi}n t_.Q:il’£-.’Ail.f\€V’l}?i’$ the petitioner
had failed to. f_’.:;j§§)VdLlCé_ loooliais and supportive
documents the month of March 1998 the
petitioner.__had lentalirno:_un.tL”co.vered under both the cheques.
in Ol;’;i’i’c’3l’_ wollm,-;A,”the learned trial Judge noticed that the
boetweenmthe parties was of Rs.40,000/– and
ivnite-::*est thereon the complainant had filled up
chleque_f0’r.§si6O,OO0/W. Accused had pieaded guilty but in
2’l”v..«proceeding the charge of legal liability was not
estaciiished. In the resultant position the respondent has
% …been admitted.
gob
7. The contention of learned Counsel for pefitioner
is that the learned Judge should have
presumption u/s 139 of Negotiable Instrument’s_:Act;.
postulates that unless to the contralifi/i’s’provecl’
presumed that a cheque was Vissueo’,_in'”discharge”of
part of the debt or legal llablllt”yh..V.”‘~He vi1oL:ld”Vfu’;*th’er”submit
that conviction of accéused’Vt_:’joun”el.._plea ‘Vot”‘Vguiit in
C0802/2805 was of noa’a%\5a’il–‘iaVs’ issued two
cheques.
8. I1a.mi:..xu;ijVab–l’e’ arfiwy of these contentions
for the %'{éaSOt_tA'[f}é3t,_’li1_tl”I€tVll:i-ETSE.lOOk we may notice that the
complainantinitiated two'”;3._rVos’ecutions in C.C.i\lo.802/2805
and CC~l\lo.77u2/2VQO5″} in hoth the cases, the complainant
tiéd «not{wh”isper_aboutHthe liability of the accused relating to
oz-her..r~case;’nth eaclh case the complainant refers to only one
prosec.utiov_n.* Liiecondly, it is to be seen that complainant
not that he had lent additionally an amount of
to the respondenbaccused. His assertive
“‘~con_tention is he had lent a sum of Rs.60,GOG/– in respect of
at Q,»
(1
which he issued the cheque. Same averment is made in
both the complaints. If the complainant had ient am”o_unt
ns.6o_,ooo/»~ as shown in cc No.802/2005
compiainant shouid have made reference of
amount when he filed the other casein’ CC
must be noticed that proceeding und_ei**__i38
Instruments Act being penai in n.or–rna%wEy:;_=
has to be proved as the chagrge,in”ai.c’rirn’isn._ai péréosecutipn.
9. The compiainan-ti establish it
beyond reasonabEegj’doubt,it is entitied to
defend the »..t:i:’ie””–;:presurnptions by only
preponde-ranc’e It is necessary that
accused waisunot requi.red.._”..’tto iead evidence to prove his
.-v..i’nnocei–1ce§A’ He rnayi,’d_i_sprove the charge from evidence of
v”.pr’o;s”ecout’i-.ovn’.itseifor by his independent evidence or by his
pro’b:ab.ieu.Vde’tent=e: If defence is found to be probable
[despite the evidence of cornpiainant, it may give rise to two
V’ ‘.vii.ei;rv’si,*-._one in favour of the complainant and one in favour of
‘–fthe’§ accused, in which cases the View in favour of the
””..accused prevaiis.
W
IQ. In the instant case, as seen from the nature of
evidence led the cornpiainarat has produced
endorsement of the bank and the notice. He has
produce correlated record reia.t.in»g.._tof_ a4i”ie-fired”..’_:2′”i1_, it
transaction. The evidence read in its :en’t’irety_
one transaction and that tooV’§Q”h:.V’~RS:4’0,Q’00{V–rVK}V.,: a ” it
– situation, tn’ triai court wager.-2-<igr:t""i»n iioidiw ffijlaji: the
evidence tendered by in'ir.ret§%ti»ttaE proved the
transaction and as the
compiainant Ventitied to interest at
23% "ioir.i.Rs€'.60,ooo/A. But the 2"
cheque :a.§so– rs.6O,OOO/A was heid to be
not supported’ by a’n_v4Vifiat.e:r*iai evidence. Such a view finds
.-v..suppVorit from the-“eviVd__en.ce on record and hardiy needs any
“‘._eii”.t:erferen_cec. __
therefore satisfied that the impugned
3″-«.__Vj-udgmentii-:3 a well reasoned order supported by evidence
V’v{r_h’i.Ee.jtAhe grounds urged in the appeai are devoid of merits
gut?
and find no suppofi fawn the evmence R hasied. The
apgeaItherefore,faHs and accorGEngry,disnHssed.
Sub*