IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 29" day of November, 2010 Before THE HON'BLE MR JUSTICE HULUVADI Criminal Appeal Between: Sri Sahaii Ahmed, 28 yrs S/0 Syed Khader R/a # 24, 4"' Cross Cuovindapura Main Road Arabic Coilege Post Bangalore And: Sri Mahaboob"Pasiia, " S/o Abdu1_Wajeed, _Genei'al '1-"ra\'rels _R/d # 8,..%.i>ari<ei Mutt B--t1ii1d_i_ng Tani; Bound 3.-Road Majestic) "gQpp_te _I§SRTC Stand Bangal.ore " (By SAri--..RasheedvC'}?ihan & Asstsx, Adv.) 971" /~ 2903 kg ; 1 Respondent _ A. , Appeal is filed under 3378(4) of the Code of Criminal Procedure .__p'rayiong to set aside the order of acquittal against the respondent and A. __eQn"v_ict and sentence the accused with which he has been charged in CC 26930/2004 on 16.8.2008 by the XXIV Addl. CMM, Bangalore. The Appeal coming on for Hearing this day, Court delivered the following: JUDGMENT
Appeal is by the complainant against the order of’acquittal”pas’s’ed’g
by the XXIV Addl. CMM, Bangalore in CC»+26.9y30/2004’on’; A
According to the complainant,_’accused’ had’ borroiiv:ed”‘a sum of’
Rs.50,000/~ on 30.11.2002 having agreed to repay the samebn 3.1.2003
and had also issued a cheque’dr.avJne._oii -Bank, Subhasnagar
Branch, Bangalore. .On._pre;§ent:aticn,._the”cheque in/as dishonoured for
insufficient funds. ‘l*}te- ..con1p’l’a.in”a–nt, after issuance of legal notice, due
to non payment,’ i”iledf’the’.comp.laint. Thereafter, the trial court After
4… Vholdinginquiry, i’dis–miVss_ed the complaint holding that the complainant
Vfailedwtog esftablish””th_e case against the accused beyond doubt relying
V upon Aimshiffia lanardihiaiia Bhat’s case (AIR 2008 scw 738).
per.S;li39 of the Negotiable instruments Act and also as per
ratio laid down in the case of Rangappa Vs Mohan – AIR 2010 SC
._I8S5e}, the initial presumption is in favour of the complainant that the
cheque was issued towards a legally enforceable debt and the negative
onus is on the accused to disprove. the same, not only hypifobiavble
explanation but proof of explanation also has to be offered;
The trial court although noted that btlth ittteilpartiegyare enga:_?gedpli.i1.VV
business, only on the ground that transaction aboV’e.Rsx…2:O_,Oll{}/-lhas to be V
made only through cheque:;._has ;rni’sconstrue_d andlldisrnissed the
complaint. So far as the mandate that rraln:sac_ti_o’11naboyte Rs.2.0,000/– has
to be made only thret:gh”_’chec;;ues§ is…conce’rne–d,_itjis only for income tax
purposes as such”, it ,canf1’ot–V.be
Accordingly, alliowed. Impugned order is set aside.
_..I.{eeping View thei1’atest___decision of the Apex Court noted above, the
“t_r_ia»1;’court.._shal«l.._dispose of the case in accordance with law,
expedit.i’ously.’ Parties are directed to appear before the trial court on
I5” Decetrgbléx, 0. Send back the records.
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