IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 23"' day of November, 2010
Before
THE HON'BLE MR JUSTICE HULUVADI Gs 1'
Criminal Appeals 41 / 2009 5/ow ;'40f'/ .éo.9()9~
Between:
Sri D Vigneshwara Aitha].
S/o late D Venkatachala a.i:.ha1
Proprietor, Ganapath Enterprises'
# 76/3, Dr Rajkumar Road '
Prakash Nagar, Bangalore
(By Sri C ShiVaku:11ar§,-;3;cl.y:;')
And: N S
1 Krishnj1AuVtom_g;iI.ion 'sot':=.ya:e. _
Solutions Pvi Illd7J"*-._"l _ ' '
# 33/ l2,}{l Floor,-3""'Ca*os's'..__
4"' Main, C¥1an=.a1'ajpet'" =
Bangalore 560 01.8'
_ -be
'V ' _ Sriv-S.Ki"isl3-norm) rlhy Uci'z1'paV
3 _ RakSi;s\:~._,,,.¢V.l -
Both' are vcli.re'qtors of
. Kz'és'i'zna"Aut'oi*nation & Software
Solutions Pvt Ltd
M K 1% 33./4_l2, ll Floor, 3"" Cross
13"
4"' Main, Chamarajpet
Bangalore 560 018 'Respondents,
(By Sri Nagaraja llegde, Adv.)
Appeals are filed under S.378(4)of the Code It
Procedure praying to set aside the order dated l3_..~l—-l»..2(308’~.in
5491/2006 and CC 2655/2005 by the XIII A3:idl’.€’MM’._4pBangalore;
following:
These two appeals havehlec-h assailing the
order passed by the ‘$26155/2005 and
cc 5491/2006 on ‘V I It I
Allegihg issued by the accused which
were given towards: the arhourat borrowed to the tune of Rs.8 lakhs due to
fsrop pay~11%.ent’l”inst1*uction,..Vt_h_e.;:omplz1int came to be filed. The cheques
are_VAisstie’d.tdurViVng 2003 for Rs.5 lakhs and Rs.3 lakhs; each. The
trial eourtvonvtliejeoinliplaint filed, after inquiry, having held that the
complainant had admitted production 01’ certain document like the loan
W}
The Appeals coming on for Retiring this-. Court–“dep1.i’vered*.the I
4
What is noticed is, on the complaint filed by the accused
regarding theft I loss of cheques, B Report came to be filed by the
But, what is not in dispute is, the signature on the cheques i,«:i§L:c:t-:..’b;;,–;._ the _
accused. The contention of the complainant iszpvthe 1oa.:i”appl:ieation’was
obtained from the accused and it is available, 0_nlyf-t’on’the.grounfii-.thai;_’
such an application has not been prodriced, the trial courzhhasi d.isrnissed
the Complaint. However, the impugned order needs further elaboration
and also, an opportunity has tVo”<–be affordedvv to"–theA:lcornplainant to have
his say in the matter andif neeVd~~p*e,. ptoducleitheiidoclument available
with him.
The approach’of’theVtrial__court as if the burden is on the
complainant to ‘establish”theplease:-.against the accused beyond doubt.
Howe-Ver,,._§aslV per S.l39 the Negotiable instruments Act, the initial
presurnpt.ion is in favour of the complainant and negative onus is on the
aecusedlto disp;=qve;;V’the issuance of cheques towards a legally
enforceable “Adm-ittedly, the cheques do bear the signature of the
,_Vaceu.se”d.tie..l11 the circumstances, taking a contention that the cheques are
_p lost-orstolen is not acceptable.
“W
5
Accordingly, only for the limited purpose, the matter is remitted
to the trial court, to know about the transaction and whether the.ace1,_:sed
had applied for loan or not. If the complainant produces sneh’linaiterial-;.___ .
after affording opportunity to both the partéeshtrial ccrdrt’*to:’_dispose_ofT.
the matter in accordance with law at the earliest. ‘l’at’tie;s,are Vdireet:eed«
appear before the trial court on 6″‘ Decuérnlier, 2010 and tl:e:r’ea:f’tve.rowi.thin
two months, trial court to dispose of the rriafter. _»
Appeals are allowed. Serrfbaelithe records. .V V’ a
An