N K Aswathram vs M/S Fortune Maker on 4 October, 2010

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Karnataka High Court

N K Aswathram vs M/S Fortune Maker on 4 October, 2010

Bench: Huluvadi G.Ramesh

IN THE HIGH comm" or KARNATAKA Ar BANGALORE
Dated this the 4"' day of October, 2010

Before

THE H'0N'BLE MR JUSTICE HULUVADI G f f  _

Criminal Appeal 884 I/M2008 ; ~  ~ 
Between: 1 l l

N K Aswathram, 60 yrs
S/o late M S Krishnaiah Setty _   V * _    
R/a Srirampuram, Bangalore u   .. Appellant

(By M S Rajendra Prasad & A:;;§;ts_.«,_ Ada/.) " 

And:

] M/S Fo1't{in.eAl.Makellf:.;  "  . 
No.S;lA, No. l ArekempVana_l_1al_li _'
Wilson l\/lanner, V';/l';"lr:;or1 

Bangalore 560027  _  l

2 M §"<a1namurt'ny_ St/o'Mui1iswamappa
" v  1?.'/:i«:No,S:,4§l, # 15'; Arekempanahalli
" « tW'il<;o'n l\/tanner, Wilson Garden
V  B"anga!.or'e_56xU -027 Respondents

  _ (By Sf; :£'afas1hg{~.is_a :5 Singri, Adv.)

Appeal is filed under 8378(4) of the Code of Criminal Procedure

A allélpraayingllto'set aside the judgment of acquittal dated 28.6.2008 in CC
"  5;;33';20o;s" by the X111 ACMM, Bangalore.



Ix.)

The Appeal coming on for Hearing this day, Court delivered the

following:
JUDGMENT

Appeal is by the complainant assailing the orderlof.:theVi'lXI£l_w_<'i A Addl.CMM, Bangalore in CC 5544/2003 on 28";6;2n0psj.., Towards a commercial transaction betéweene the coinplainlante-..an€-j_' the accused, it is alleged by the complainant, the acc,usedllWas...dne..in a sum of Rs.'? lakhs as per the agreement__e'n.te1'e.d intoduring Eecember 1999 and, in this regard the aco.tis'edA had{also"i_ssu:ed_,»a cheque for Rs.3 lakhs and two"c'l1eq,ules 'rat each Vtoiivards discharge of liability. According toﬁthe had assured that the cheque would be honoredaon vpresenta[:iio'n,.. Subsequently when the complainant cwanted r,:'\')',5.ﬁ1['6:,st:€.IItVv'[hf3 cheq1_.a_es.,sat the request of the accused, he went on 'est' onino irescntrini the che ues. Ultirnatel , when the che ties were P P cg? _ _ 3 9 Y 9 9":.__,presen'ted';tithey ﬁicréai' dishonored for insufficient funds. After issuing legal notice, came to be filed. The trial court after inquiry, di.stnisVsed<--thc complaint on the ground that there is material alteration of dates in the cheques at Ex.Pl to 3. Against the said order, A _ cornpla.inant is before this Court, }'kL/ Heard the counsel representing the parties.

According to the appellant's counsel, the opinion otlthe regarding alteration of the date is only an opinion andyit. to be] substantiated by other evidence and, the acctisedtio;adrn.i't'the e_.agt¢'ii;;¢ of a commercial transaction between him and'--~the~compl,ai.nant and the ' cheques were issued by the accused towards' a legally enforceable debt. it is submitted, in a cryptic order, without at theipresumption available to the complaint based on t_he..ch{:qu.esc by the accused, simply on the score _t'hat'1;the dates {were altered 'randy: without considering as to who without looking into the correspondence b¢twv§§iﬁii'Iitt§V and the accused regarding the transaction, the trial_ccurt the complaint.

Psi'/:sl¥i'iCC1rttra,.c_counsel~--rer'resenting the accused submits, fraud has been cornmitte'd'hy"the*~complainant in altering the dates despite making ' V's»...___paymentpof the a?.iaoa'iii. It is also the opinion of the Expert that the on the cheques were materially altered as such, rightly the trial c__ou_rt has dismissed the complaint which does not call for interference. V What is being noticed there is a commercial transaction between the parties. It is not in dispute that the cheques were the accused to the complainant. When it is the opinion of . there is material alteration, at whose instance ithas hap.p'e'ned:is,not. made clear even in the discussion except pointing oujt"rth'}1t th.e1j'e_i's rt1ateri'a1i_' alteration. Further, no proof is produc'ed'b_y. the accused bel'ore'vt.he"C3ou1't --. L regarding payment of the amount except letters.' in.__the_7forn'1 of correspondence. T . L , _ .

The trial court has not taken into considei=ation*s_oiine of the crucial documents tvyhich_arei'pVlacedh by_the__ parties before the court. Might be the opinion the Expert regarding alteration. At whose instance alteration ih-as taken place'? Whether before handing over the i"t:he<f;ue,s sucli' alteration was there or not, is not made clear. It also appears,-i'__ini ihe'~«.c_onitevn'tions put forth by the accused as well as the 'complainant at dit'ferent stages -- whether these aspects have been denied or. gio:;nt.ered,"the trial court has proceeded to dispose of the case with an .accused beyond reasonable doubt.

approaicli that it is for the complainant to establish the case against the Alt"

S1 IS and 139 of the Negotiable Instruments Act do provide for presumption in favour of the complainant and, the negative onus in on the accused to disprove that the cheques were issued towards a legally enforceable debt. The discussion made by the trial court is onlrylwith reference to the opinion of the Expert as regards the date on..~thef and except that, it has not deal.t with other correspondence' the parties in detail and also the contents therein:; In the circumstances, the appeal is allolwed.._ lfrnpulgned--.ovrder' aside. Matter is remitted to the trial eotii-{for disposaollof thelsarnle in l' accordance ivvith lavvfafteriiaffordinvg opportunity to the parties to lead evidence, if any, 4' WhateverA'eh'servat"ions made herein shall not have 21 hearing on 'the, disposal of the case on merits. Send back the records. sea Judge

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Karnataka High Court