m mm HIGH sound' or KARNATAKA, BANGALORE
DATED THIS THE 26?" DAY 09 JUNE zoeajj
BEFORE
THE HONBLE MR. JUSTICE
CRIMINAL REVISION P_£_3'FfP;QN NQ;«2*L*5§f.(§F:'2_Q{36 ' »
BETWEEN
Sri.Gopa1akrishna '
Aged about 51 years, _
S/o I{.N.Kamath, " _
Vajra Sccuritim 8: Inv¢snncm'~.a,.A "_
Mangalom-575 001. ' V " : Petitioner
(By sn. Ptmdikai
smt.ch1t:~a1<a1a' A . P§a%hhs§:§A%;%%
Aged _about~53'vy¢ars,;~--._ V "
W/o;'M.A.Prabh1;,'
'~ ..... .. N
: Respondcnt
Advocate)
Criminal Revision Petition is film under Section
V'39'?'..4_Cr.P.C praying to set aside the Judment and order of
fill Additional Sessions Judge, Dakshina Kannada
M-'.afléa1o1'e in Cr1.A.No.3l9/2004 Dated 2'2-9-2006 and
_MJ_11dg1I1ent and order of the JMFCA? Court, Mangalore in
" C.C.No. 196/ 2003 Dated 9-9-2004.
X ¢LK\A£!.,;-«PL-M
This petitionmmlngosnforhmnim. thisdaythccourt,
made the following: '
O 3 __B_ E Q
The pc1:itioncr/ accused is convicted __ if
punishable under Section 138Mof
sentenced to undergo S.I for 5
directed to pay compensat§f§n..
months in default to _ an order of
conviction and " passed by the
JMFC, Mangalgrg in said order of
convictian "is«~mi£.1fn'mcd by judment dated
22-9-2005 11: Additional smions Judge,
in Cr1.A.No.3 19/2004.
« was Managing Direachor
& Investments Pvt.Ltd., and for the
' he borrowed a sum of Rs.3,50,000/-s
mam 'respondent complainant. Towards thcdischaree or
% he imuod mm cheques; ctmue bearing No.
..9§O138 for a sum of Rs.1,00,000/-; cheque bwring No.
” 930139 for a sum of Rs. 1,50,000/- and cheque bearing No.
\
)’L,Qmo.>~U~—-
A ” if H ” respondent] ooxI1pIaJI1an’ 1:.
930140 for a sum of Rs.1,G0,000/-. Exs.P.1 to R3 are the
chequw issued by the petitioner/aecusw. The
on presentation were returned with
bankers as “stop Daylllent”. Exs.P.4 to
memo. On return of the
issued a legal notice as p€:1″- %tma§§ke
good the money covered the For having
served notice Ex.P.8 Eg,P.3(a) is the sigxature
of the petifioner/aecueeti mag reply has
been In the reply he has
contetiticd ” were forcibly taken for beixm
retained net for presentation to get them
frxat…ir: the that legatti he had also lodged a
That the respondent/complainant has got
manager and got marked Exs.P.9 and 13.10,
“eeopies ef;.letiger extracts. Ex.P.12 is the complaint lodged by
Itisthecascofthc
_ reéspondent/complainant that the petitiona’/accused while
». taking the lean had askedfor self cheques and aeoordingty
were drawn by the
Q .Q:.~.«u:~1/–~–
Exs.P- 13 to P16
respondent] complainant and handed over the same: to the
petitioncr/accusad hcnein and the cheques to
bank for cnmhament by a
respondent/eozraplainant. He is 3
in his cvidcmcc has stated Tor
mspondent/complainant as
the cheques from the and carried
the same to the A got than
cncashed and was taken by the
the discharge of the said
sum to 13.3 came to be is-sum by
the in favour of respondent]
– VIA’-‘.’Wv«..3.is the bank omciai who has sfsmd that
to R3 were drawn an the account
the petitioner/accused in which he was
_’wor}s’:ing ‘:asi a bank official. He has also statad that the
A 5.’ had instructed for stop-payxgncnt of the
‘ cheques. The letter issued by the petitioner/aocused is
~ marked as Ex.P.17. The petitioncr/accused denying’ his
liability and contending that the cheques was forcibly
taken, in proof oi’ the said oomerrtiorx cxamirmd I).W.1 and
another Witness D.W.2. The trial Court as first
appellate Court held that the petitioner]
taken a loan of Rs.3,50,000/- ”
towards the discharge of the sariagf: 45
Exs.P.1 to P.3. The choqtioaon ‘iosjtiiod
with bank endorsemexjaz as T_ issue of
legal notice as the to make good
the same wifluifi the 15 days from the
date or petitioner/accused has
NJ. Act.
. C.3§~.”;t on behalf of the petifionor/accuw
which is claimed to have been given to
«iiospondent/cmxnplairzant undor self-cheque has
‘ W H ‘T mnot him at all and it is, some ottler person Le. P.W.2
iv?ho’f1ad withdrawn the money and had not paid the money
VT ” the petitioner] accused and thus respondant/compiainant
has failed to establish that the loan amount was gvon no the
£;Q_LL~.£,i.5\~V—
petitioner/accused. It is further the
respondent] complainant had paid 0f
Rs.15,000/- and mainly the
taken all the cheques in :33 in ailjsuxjiqf
contention of the learned c:€iriL1_1_}s<:l i'az);_'t""f_hVt.':
would not cnurc to the accused in
View of the fact ma;%[%§;;e by him
under kction 200 a mcnmn of the
taken the cheques.
There having taken a sum of
Rs. rcsponsdent/heazfixl. On.
the ot11c;r”–« pleaded in i E’x.P.3 that the
in financial distress and though he
the amount takm1 as loan, the
respond¢;1t;:§5fi1p1a1nant had forcibly taken the said
__<:heq'ua: s t.as security and had presented the same for
5 This would clearly establish that the
V' p:E';titi0nCI'f8.0CEiSCd had taken loan fimra the
~ u respondant/complainant. In addition to the same, it is also
not stated in the reply notice m.P.7 that the loan amount
was taken by P.W.2 and not by the pcfifiafigrfagcused
herein. Thus it is Well established that who
had taken loan amount of Rs.3,_59».0OO/'
to I–'.3. The cheques towards th<: 'dis«.haI'g*'f 'iv 6' Aé" J
earlier stated the chequeé
without encashmcnt gnd payman'.
The statutory issued to the
petitioner/ao.;:;;gs;;e;j, the terms of the
notice finding of the Courts
below guilty or the offence
of the N.I. Act, (lacs not call
for "
is éii’bm£t*..ed by the pctitiancr/accused since he
distress had borrowed a sum of
‘from the Iespondent/complahlant. Despite
bcst’eff§1ff.sv he could not organise to rcpay the said amount
A were several creditors to whom petitioner/accused
V. liable and he has been mobilising funds from all
» resources to satisfir all the creditors. Even now he is in
/\JZs.uq.L:~ 1&-M
financial difiiculties arid as such he sub1:x;z.!2.VtV_s-.:’_ t11at the
sentence impflscd for the pravw
excessive and a lenient View shogxldbe taker: _’i1V3:*.
the sentence. Taking into accoi3;1t;’th:§ ‘A
the petitioner/accused, 1 harsh
and excessive and the Hence,
the following:
The aflowed. The order of
affcxmw punhhable under
af bonfirmed. The smtcnee for the
said s %a-gm: and in Lieu the petitioner 3
% % fi1%$ofRs.4,00,000/- in defmlt to undergo
six mantlls. Fine amount on rcoavery
shai ‘1 fix respondcntmonaplainam; F1nc’ amount
‘ U H is mm due deduction. Thcbalance of the
shanbc deposited with in a period of two months from
‘°'”‘””” sa/~.
Judge
Sbb/–
