E"V[By SriA. Prasaad. Advocate]
_ 1 _
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 267" DAY OF NOVEMBER. 2009
BEFORE
THE HONBLE MR. JUSTICE ARAL1 NAGAf'gz'4'§J_" I'
CRIMINAL APPEAL NO. 610/200_?'__:'~--.o. A
Between: A
Y. Laxminarayana Bhat
Aged about 52 years,
S / 0 Late Subraya Bhat,
Naimadi House'. *
Yermal, Post Adamaix-.__ ;
Udupi Taluk A
_ ----A I V ...Appe11ant
(By Sri. Nataraj Bal1a1_Vfor Kishote S.hef_ty, Advocates)
Baska1'a'*D. APadu1f§iriri , A A
Aged _about'' 64 }.Ie.ars*, A A
S/.o}."Dej~u Mefidon, V
A -. Kac1i'pa"t..r1a Jarapgjafiou
A Po3tPadubid.1f_i,
" U'dupi,.Ta1"uk._af1.1d district
' ' A ...Re5POncient
Eriminal Appeal is filed under Section 378 {4}
the advocate for the appellant praying that this
r°°'--(~m'V.'"_"""""°"'*""""
W2-
E~lon'ble Court may be pleased t.o set aside the judgement &
order of acquittal dated: 26.02.2006 passed by the II Addl.
C.J., (Jr. Dn] & JMFC, Udupi, in C.C.No.75-49/03 -- aCqui_tting
the respondent / accused for the offence p/u/s. 138.
Act.
This Criminal Appeal coming on for t1ear.i’.”-lg;
the Court. delivered the following; _– ”
JUDGMEN: l
The complainant in C.C.i\lo._V’.7549/l2A()lO3 or1Tthe:f’ile ofltlielhap
learned 11 Additional Civil JudgellliJ:i*i.’ l_)n.]l Udupi
(hereinafter referred to for short), has
challenged in this appeal thieileorreetnleshs”€117the impugned
Judgment. F’ehr’ulary 2006 passed in the
said case aci’q~iiitting* W accused of the offence
under Section oi E\I…l–:
-2:.larguments of the learned Counsels for
the’~s_,_ide_s perused the entire material in the original
‘ ll obtained from the t.rial’Court.
c”-~(‘\”‘”‘”‘°–‘
-3-
3. Sri.Nataraj Ballal. the learned Counsel for the
appellant M complainant strongly contended that the Trial
Court committed an error in holding that there was nov.vseurvi’ce
of statutory notice, issued by the complainaorit,””‘o_n—.:__tt2e”_
accused and therefore. the complainant. catise of ”
action to file this complaint against t}:1e..jr’ac’cused lfoi>.._Ath.e
offence “under Section 138 of N.I.:5l_ct–..i.n respect. of
cheques in question. He V__furtheVr___Vc0,ntended “that_the Trial
Court committed further there was no
legally enforceable _d’e.bt eiristingggf date of the
cheques.
4. _.Per co’i1tra,…Sri’§KlSl1ashikan.th Prasad, the learned
thee 1″‘espond”ent.l — accused strongly contended that
E}tt1ibit.s D} to D7 clearly establish that the
l”.raVC,cused residing at the address to which the
notice EXP’? was sent by the complainant and
l”._V”there1?ore–,-there was no service of said notice on the accused.
¢_.tr*’=–»m~..»~«
i4i
He further contended that the accused has successfully
proved his defence through DWS. I and 2 that the two
cheques i11 question were issued by him in blank ‘t.o”»athe
complainant as security in respect. of the agreerne”nt«..entered~.
into between the complainant and one Ashok ~..
were not issued by him to the complainantstoWards”*disc’ha1?g.§eA
of any existing debt.
5. As could be seenifronii Ex.;l54’7;piv’the,u11served postal
envelope showing thevadd1″ess::”ofV as ‘Bhaskar
D.Padubid1″i,V” / 0 Kadipatna Jarappa
House, Padvxubidril Taluk and District’. The
accused notarised copy of the ration
copy of identity card, Ex:.D3, the
notarisehdu pass book of the Union Bank of India.
A “theV___v’Enifelope sent. to him by Karnataka State
“”‘:FTii1.ar;cia1 Ccrp0rat.ion, EXD5, the notarised copy of the
V”«.VQ”a.cL:.noWl*ed’ge1nent cum Permanent. Registration. Certificate
Cw_…_:-~«…–…,»,.
LL54 5 I144
issued to him by the Directorate of Industries and Commerce
in respect. of his firm Kanaka Pipes Private Limited, Ex.D6,
the Report of Mangala Credit Cowoperative Society Lliiriiited
and Ex.D’7, another report sent to him by
Co–operatiVe Society Limited, Shet Building, ..
Udupi
6. On perusal of these doc”ur_ner1ts Vito D7, it
could be seen that the ac’cu”secl_pu::j;1s. at Laxmi Om
Lekha, Salikere, Ba’ahmava1’=,–::”AUdup_il and District.
Ex.P7, Ex.P8, Certificate of
posting andluthe that the said notice
was sent. ff) thelllaccluseld address of ‘Kadipatna Jarappa
l$olsVt,WllUdupi Taluk and District’. But
that as on the relevant date, he was
K”resid1r1g—.,__at. Om Lekha, Salikei. Brahmvara, Udupi.
” it is ‘clear that the accused has successfully established
that the date of the said legal notice, he was not
(….__'(“‘”}.-»-…’,.,,
-7″
the accused that the said cheques were not issued by him
towards discharge of any legally enforceable debt payable by
him to the complainant but he issued the said cheques:._l_a’s_on
the date of the said agreement as security.
8- DW2, Ashok Kotian with whom uihet’c¢mp:ainyam;t
said to have entered into the ags’ee–rner1t’dated
respect of supply of PVC gum has-..:de.pose.d~ “the said
cheques were given by the ‘ac{:L1sAepd%.i_to. complainant as on
the date of the said llvlbeing so, the
cornplainarit as on the date of the
cheques in any legally enforceable
debt payable the complainant or by the said
and the accused issued the
said discharge of the said debt. Therefore. I
of the opiiliofnlthat the Trial; Court. did not commit any
in acqnittiiig the respondent M accused, of the said
._ ‘offe.r1cel.’
C,,.,_____(“”7=—~V,_,.«.
9. Hence, the present appear. is dismissed
devoid of merit. N0 orcier as to costs.
PS ._