IN THE HIGH coom OF KARNATAKA AT BANGALQR_Ee._V Dated this the 16"' day of August, 2010 _ C C A Before THE HON'BLE MR JUSTICE HUL=UVADIfiv C 7 Criminal Appeals' -1579 V Between: Sundar Sheity, 46 yrs S/o Koraga Shetty Kaiithadmane, Parangipet _ BantwalTa1uk,D K _ C Appeiiant (By Sri ITharanati_1 Ari'./.)€ 'C _ i. C And: Satish Mallziya __ . 1' __ -- . S/o late K Koganna Maliaya P V S Compound, Mantiagiiddex Mangaiore _ " Respondent C under S.378(4) of the Code of Criminal Procedure prayingxoi set:':a.sui'deV".e~:the order dated 7.8.2007 in cc 5799/2006 by the C V C V V . EMFC; gavloreti. ' it 'A The Aopieai coming on for Hearing this day, Court deiivered the A foliilioa/i'11»g-.. J/"/ JUDGMENT
Appeal is by the complainant assailing the order of,
the complaint and acquittal of the accused, by the _A 7′
Mangalore in CC 5791/2006 on 7.8.2007.
Heard the counsel for the appe’lVi’aiTi:’t;» The ” resipondenii although
served with notice, is neither priesepnt reipi-‘es-ente.d through :1 counsel.
It is in connection with ‘di7s_ri1issa,1.7’ol’ thec’.co.rnp-laint filed by the
complainant:appellantvagaiiiet ti’ie_7fe.spondent for dishonour of the cheque
of Rs.1,50,000/as an”endorseifie_nt that the account has been closed,
complainagnti’ is before” thipsi Court.
” A.c_c°ord.ing..,_ to the”*–c-oinplainant, the cheque was issued for
by the respondent for having borrowed the loan
R3,}_.S0,000{~’.v’Vie:Jrlbwever, what is being admitted by the appellant
himself is, his’ brother is looking after the finance and he does not know
anytiainig,’ Further, on behalf of the accused, when the cheque was
Jfiy,
confronted to the complainant, he showed his ignorance of issuing any
loan from the company. That apart, the pass book issued in the name of
the accused shows receiving of cash of Rs.4,000/- and 5000/» through
Demand Drafts. Further, in the pass book there is also an entry”
extent of Rs.9,l00/- as balance as on 19.10.2003.
It appears, all is not weli with the complainant ‘~ .\?V*heii”thVe’~.
accused has taken a stand that the cheque_vp4ih’asbeerVi isstiedas the
trial court having disbelieved the versi01’i”ofithe”c.omplainant,~’dismissed
the complaint.
Accordingpiito the. it is only Rs.50,000/– he has
borrowed from the Fina,nceViCorporation. The complainant admittedly is
not theibusiness but, his brother is stated to be looking after
the same-L’_p Thoiigh ini’tial presumption is in favour of the complainant,
H but it is admi:_tedly”:a case of financial transaction and he would have
imainitainted theaccotlnts. ‘}”he rival contention is that as part payment,
ainouiltihasiibeen paid from time to time. Might be the cheque which is
JP’
taken towards security must have been misused by filling the amotii!.t as
is stated by the respondent accused and also opined by the tri,aE.co1i:rt,- ” ,
However, to enable the appellant securel’?and’ ‘produce”thell~
account books and to claim the exact due and also in thelcase “wh’etl*ierl’=
there exists an enforceable debt, has to°b.e°thrashed._9u’tbefore the trial
court or else, if it is feasible ‘for’*~the ltocosne to terrns, the trial
court can also allow the parties tvoV_co1_npo’und the ¢t£¢n_¢:.- by setting aside
the impugned order.s_”
Accdtfdingly, .i;ripugn.ed~Q_rderj is set aside. Matter is remitted
to the trial courtlfor disp(;sla}., in. accordance with law, after affording
_opportur1ity to the parties. Vllf the parties are likely to negotiate and go for
“‘s,ettlemetl1t, trial«,_court may also allow such settlement. Appeal is
allo”we’cll5ack the records.
sal’
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