Karnataka High Court
M/S Maba Corporate Services Private ... vs Shri I M Nagaraj S/O Late I P Malle Gowda on 15 September, 2010
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
iN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 15* day of September, 2010 sq » H Before mg HON 'BLE MR JUSTICE HULcfJt}§4'z§r 1 G C Criminal Appeal; 314 I'---.2_t)G8 Between: H V M/s Maba Corporate Services ¥',vt Ltd h # 186/1, J C Compiex Annexe' 5 Sirur Park Road, Sheshadripuram ' I * C' Bangalore 560 020 V ' By its Manager&?A Hoider _ _ - ' Sri HPuttasome Go=1_§/daf V . 4' Appeiiant (By Sri H P Lee1ae1;ai_'a;Ce';', Q And: 'T C C I Sr.i I M" Nagaraj._S/on late]. Rfa Kithoor, Gendehaili, Beiur 'i'aiuk Hassan l'}j1st1*iet Respondent my sass Ra'efiai.aj;.,,..'Adv.) MMMMM N 'C ' under S.378(4) of the Code of Criminal Procedure C C prayingito re_fver.~:e"and set aside the order dated 7.6.2008 in Cr1.A.iI2(}07 _ _4by__the XXXVI Add}. Sessions Judge, Bangalore. = Appeal coming on for Hearing this day, Court. delivered the ~--fol£owing: W K) JUDGMENT
Appeal is by the complainant being aggrieved by the order of the XXXVI Addl. Sessions Judge, Bangalore in Crl.A l/2007. In connection with a monetary _tr.an_sactio'n""'betweenVflthe. "
complainant and the respondent, a cheque :'carr'.;e'to b'e.,issued accused for a sum of Rs.8lakhs drawnonr.,SVtateAI~3ank. of' Branch, Hassan. On presentation, the c,h.ec}ue_ was dishonouredifor want of sufficient funds. After issuance of lcgaifiloticei, complaint came to be filed before said court, after inquiry, convicted theaclcused.jand'-ordered, pay a sum of Rs.8,20,000/-- to the complainant and i'3si.5-,f)(g)'()l__-- as to the State. Against the said order, :_.~in~ the app'iealE_tiled,_ by the ae,c:us'ed before the Sessions Judge, opining that there are 'Vcertaint ivisregularities and that the case of the accused has to be ' j._accepted'"as a probable defense to rebut the presumption and, also the .//...__,transaction~.bet;ween the accused and the complainant is doubtful, the ._app"ellaVte"coua't allowed the appeal and set aside the order of conviction. this appeal.
by The matter was heard eariier. The respondent's counsel has.__not appeared since two occasions. Heard the counsel for the appellant;''- ., 'i'he appeliate court, relying uponV-'the*--decisioriairs"Kfishna7., Janardhan Bhat Vs Dattatreya G Hegde also, taking into consideration that the-v.cjornplainant. :'noVt*-furnisjhed income tax returns and further, the complainant lent ioiiiy lakhs but he has presented the cheque ciaimed is excessive that too, §..o:'ili:yp:Vfor Vtheilinterest charged is at the rate of 25% :thefaccu.sed 'successfully rebutted the presumption; 'ic.ourse,«,% tl*ie"'appellate court has also taken into consideration signature oirthe cheque is that of one ink and other writings are 'in..different_Vi'nl'< and also considering the defense taken that the laccused o"v§es_i'oni§y Rs.2 lakhs to the complainant, has acquitted the acctisedand set"a.side:thé order of conviction. n In the__c'ase of Rangappa Vs Mohan - AIR 2010 SC 1898, A speciifiealliji' referring to Krishna Janardhan Bhat's referred to above, the id iApex..'§Iourt has held that there is initial presumption as per S. 139 of the We 5 Negotiable Instruments Act, in favour of the complainant and it has? to be presumed that the cheque was issued towards a legally debt and that, negative onus is on the accused. Further,_i_n~«..a Cjatcna of' decisions, it is held, it is not sufficient that';:nere:A4plau's_ible 'eitplanyatioin offered by the accused is sufficient to rebut the'p1fesumptiyori.and it needs convincing and acceptable evidence toiidoiiiigvgay With. the-ipfevsuniption. When admittedly there was a coinplainant and the accused, mere plausible explanation to disprove the presumption.
In thc_appe*al___'is ailoyved. Impugned order is set aside. Matteriss.referred=bael§to 'lower appellate court for disposal of the same;'inc_accordanc'e' with law, expeditiously, after affording in 'opportunity the parties. Send back the records. salsa