Sri M K Bopanna S/O Late M T Kariappa vs Sri K S Venkatesh on 21 June, 2010

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Karnataka High Court

Sri M K Bopanna S/O Late M T Kariappa vs Sri K S Venkatesh on 21 June, 2010

1 CYLA L412/G7

IN THE: HIGH COURT 0}?' KARNATAKA AT BANGALORE

DATED THIS THE 2181" DAY 09 JUNE 2010  
BEFORP3 ' _

THE HONBLE 'a\/ER.JUS'I'ICI*3 A.S.PAC}i_I-:'f._fX§E%?I€E.::'  %

CRIEVIINAL APPEAL NO. 2}: 1  290-7f -- .1": '-

BETWEEN

Sri. MK. Bopanna,

S/0. Late Mfi'. Kariappa, 
Aged about 48 years.
No.279, 4"' Cross,

6"" Main, Vivekr1aga_1',     1 

{Sri. J. PrakaV::3h'. '£X:§$&:}'I _ 'V   

AND

Sri. KS.   

Fathers Narivj not Known ~~1Q'f¢-he appellant
Aged Major, ' V   

'*Aclars2-Q1"; 12/ 1. Vv'-List Par}; Road.

 'V "Sf" Cﬁgjss  --Ma1V1eshwa'r2:.rr'a;V
 Bang_.a}cre'  T  RESPONDEN'I'/ S

(LE-1.'i;'~TK. & Mnlﬁhy ; :AVci'v.]
' V '"'   *****

fi'2.is; C,rVir11i11a1i Appeal is filed under Section 3'78 Cr.P.C.

.,i.",:"*..p"r'aAying to' set aside the O]'d€1' c1t'..15.11.2OOE:'> passed in

. .C.C.N0.,28-463/03 on the file of the XX A.C.M.M. and XXII

   ASCJ, Baxageliore City and consequently convict. the accused
 -.331/S1. 138 of NI. Act.



2 CFLA 1412/07

This C1'imir1al Appeal coming on for He.a1'ing, this day.
the Court, delivered the following: ,

JUDGMENT

The appellant has challenged the a(7quitta1E.tl_"o£'_'_lthe respondent for the chalge under Section 138 01: K '' Instruments Act (hereinafter called 2ts{l'thel'Act'«. to-Ir' shc,-.r_'J.VlC'>1ei all trial held before the Addl. CMM, E_3angz.1l01_'el"{:lty.

2. The facts relevant for thellllptnmcese 5:' aﬁpeal are as under:

The appellant__he1'ei;1...i.s._the .cQm§jlz3.irraI1:t" known to the accused and the lhéd l_4:')0_1'1l'0l\?vcd" a hand loan of Rs.50.00Cl/-- Octoljler 2002. agreeing to repay the same tA\ritl1i--r1lsi*x_ interest at 24% 13.21. Towards the 1'epayn1enlt"~Vr)f"t.hef.l(ia_n;l"'tl1e accused issued a post dated 'l'Cheqtte':l'be_a1:"iI1g N0.l3757"7'4 for Rs.50.000/-- dated 13.3.2003. {presen.ted to the Bank for encashmerlt and it retullrned withf_ ah endorsement of inst1t'ficie11t ftmcls. The ' lcQn1plain..a1l1't. issued the notice and it was not complied with I cIrcumst.at1ces. the appellalnt. filed a complztint in the

3 Crl.A 1412/O7' Trial Court to take action against the accused for the offence under Section 138 of the Act.

3. The accused appeared before the Trial Ca'-inrlt "&il:Tl€l_':'li'-l.$l' _ plea was recorded. The Complainant examined.*h'in1se.lflaS {RV-'\»',s_ll and the documents Exs.P.1 to P9 were I11;arl§edl.'ese.'l'l1le"-statrer;1e.aE'Al of the accused was recorded un:iler__Seetion 13 e:4;'13;~::',V }-Ie; has taken the defense of total der1ilal.'vl a(:<:_tised examined himself as DW.l and other_t§:'it11essesVll3W».sQ2.and 3 and in their evidence, got. niarked t.l1eA...(io_C,ntalents to D12. The Trial Court on alpprieeiatilon i3o1'"the' material on record granted an order of at; Liittzal elndl laisrieved the same. this an. eal ,. . _ :5 4' 3 l has beer17..pi'eferred: ..

_V I hatfe hlea.srd the learned counsel for the appellant. and lll"'also:,.Al-earned eo1;tn'sel for the respondent. The point that l';-1rise_ for eo'n,_si'de1'ation is:

H the judgment: and order llateduaittilng the respondent for the charge under it Section 138 of the Act is illegal and perverse ?" 4 CrI.A 1412/07

5. It is the contention of the learned counsel for the appellant that the cheque EZx.P.1 was issued by the E1C:.t.€l{i»¥,3.(:'.Cl towards the repayment of the debt of Rs.50.000/~ him in the year 2002 and when the cheque ret.ur'ned with an endorsement of i]i.SLI:i;fi>t;ie'Iit. iuiids. was issued which was not VV(",()}i1}3'l'i'€'._'(f»:".ttt'll.l1 ClI'CLlI'IiSl.E1I}C€S. he submits thatva"fa.rcsL1n1.t)t.i--oii rai.sed under Section 139 of til1O~'~\57..i_ mlat'ee'I'iall:to rebut the said presumption. In vlhe submits tliat the acquittal oi' '1.1t§§ lldefense is illegal and perve1*se..~t~he"7lIea1'iied counsel for the t'6SpOl1d€id1ll. s.i;::ppo;§.ted_ judgnient' and order of t.he Court below".

6;' ~ So far as the ijresumptiori is concerned. except, the there other material placed on record. The c1o--r.n"p.1_taiiiaiit«_l1'asfnot ever: produced any receipt for having paid Rs.50.-Q_OO/.~ ~al_sf.loaI1 repayable with iiiterest. at 24% pa. in the

-'4._ci;:cL1mstahH_c'es. it is ciiffictilt, t.o accept. the cont:eht,io1i oi" the l cor1'ipl2tih211it as regards the t.ransact.ion between him and t.he accusedl It. is no doubt true that the cheque which was /V"

5 Ci"1.A E412/O?' presented to the Bank rei.u1'ner:i with an enciorsement P3X.P.2 for insufficient funds and t.he1'eafter. E3x.P.4 the eopy..vVot:_'i:he notice was Issued to the aeeused.

7. But at the same time. it is.-r'eiev.an1--'_'to accused has taken up a defense the complainant was a Colleague in "

had some necessity and hraci t:ake_n:ti'i.e iaaii f.ioiii.V_theVi§sist.er of the complainant long he had issued some blank e}*1eC1t1&5~1F' hiS«.~sis»i;é:fAi at 91'.-'_ the transaction and after the ofathjevheoniolainaiit in the year 1998. the by the complainant and in the ei~reti1nsta':n:ees'.v4"he""sL1b'nii.ts that the appeiiant has not acivaneeci any l0_aI'1'~tC'_t:h.e"zt.CCL1S€d. It is relevant to note that aceOIjdingﬂ"to_VVthee"deiense ofthe accused. he had tat-{en a ..~'i.o_an fi"e.{11:_:fhev sistei'«..o_i7.tiie complainant prior to 6.2.1998. _is th'e_1"ee"e.ipt wherein it is stated that the aeetiseci had paid Rs.l,O0.000/m being the amount and ' inte1"es.;_ 1,1ii.ﬁie'rhft.ne cheque bearing Nos.369393. 375774 (by 1ni,st.ake 'the; second cheque number is rnentiioned as 3757774 '-of mentioning as 375774} as full and final settlement of :><";

6 Crl.A §.4}2fO7 the dues and ii is stated that the cheques were misplaced and . as soon as they are t.ra.ced. the cheques wiii be handed over to the accused. EVCII the receipt was produced by the aicczihsed in the proceedings in CC No.30891/2001. So wheri produced the receipt Ex.D.8 in CC NO.30891/200'?..%111d:"{.h'E3i;6"

reference of the cheque number 'E11. EiJ><fP'.'i'«ii1'--.tI1i.s .c'2'1s.e,iii5t11e. receipt at Ex.D.8, which is dated 6.2VL'i__9'98; 21 t-Ii,-;.g.cecs1_».:n1"érén,;ée. could be drawn that this cheque""t.I3x.P;.1i..was the accused to the sister of the ,'eorni_'p¥.a"iiz1_a111te n'1'u»ch"V< prior to 6.2.1998 and aﬁter the deatii of t'n_efi's:istei~-:oi7the complainant. it may be that the coVri1_;31airiéint'1;i¥2ts_'n<1:is.usedgthe same by filiing the blainks andtfnfese'3nted'.i;lrie cheque and after the return of the c11eque.xh='a.s The defense put forth by the accused _is niostv ;3.roba'b1e" and it is not necessaiy for the ttccusved {to 'prove his" defense beyond reasonable doubt. 'Fturth_e1n1Vo«:teh,»v évwhen the criminai proceedings were pending betW:;ei1 the"ilbrother-in--iaw of the complainant and the 2icc'used.;~V ii. is unnatural to accept the version of the 'eornpi€i~§:.nar1t that he advanced a loan oi" Rs.50.00O/W to the _""€'1CC'1§iS(?Ci when the accused himself was facing the proceedings ;' "Y Crl.A E412/0'7 in erirninai Case ir1stitut.ed by the brother-in~»Iaw oi" the complainant. So this probabiiiiy also strengt.hens the d4eIfe1n_,she.Vof the accused. So. if these all Circumstances are-__itttéiketn---.__ii1i;Q'_ consideration. I am of the opinion that the'I'1'i2i:E'~..Ct3tz1*t eh proper 3.ppreciati01'1 of the 1"z1a1t'eria!_ OI).-,IA'(?T'CGIfC1' ._he1S'Vvi"igh%.1y.' granted an order of acqtlittai. I-*E.em:_e. t.hiS.a}3peaitVisV'A-withettttg ahy merit and the order does not call E:(3Vr_é111y '1nt':e-."feA1'e1"1ce§;Hence. I answer the point in 11egati.\{_e"s1nd'VprQcee.giV.t6'*.pass the following:

The appeai" i45"'~;:1t5mi$.5ed. = sd/-* Eudge JL

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Karnataka High Court

Sri M K Bopanna S/O Late M T Kariappa vs Sri K S Venkatesh on 21 June, 2010