Karnataka High Court
Sri B Manjunath S/O Late Byrappa vs Sri J N Gurappa Reddy S/O L Narayanaswamy ... on 12 October, 2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 123"? day of October 200.5}:
BEFORE
THE HONBLE MR. JUSTICE
CRIMINAL APPEAL N'O.2d7i37/é0C3Gid.,
BETWEEN V d A T' A
Sri B Manjunath,
S / o.1ate Byrappa, ._ VA
Aged about 44 years, ._ ;
R/a.No.6/1, '
Byrappa Com;)o':1.nd;; .. I
7th Phas6.'.P1Jtt;ef1ai1ai1i1;.
Circle, J » _
BangalVQre'--f>60'.:Q78._' * .. Appellant
(By M' Adv.)
AND: V A V' n d
Sriiddv N' Gurdp _R__eddy,
* 'S]'0.Ij5'Nai"ayana Swamy Reddy,
' _Aged-.abo'ut°'52 years,
' R-,/o;Nio.__i2"1 .,iV Gandhi
"Cross Ro"adj,* Jaraganahaili.
J'? Ne_1ga.r.;' 631 Phase,
Bariga.1{)re~560 07 8. Respondent
A C" Sri T Subramanya and Assts. Adv.) This Criminal Appeal is filed U/S 378(4) of ' ":Cr.P.C., praying to set aside the judgment and order of ¢___,_____{""'*-v'"\.....
¥\.) acquittal passed on 7.9.2006 in CC No.8338/2004 by the XXII Addl. CMM and XXIV Addl. Small Causes Judge, Bangalore and convict the respondent. This Criminal Appeal coming on for day, the court made the following:
JUDG1\/lrEN'1_'g 'V C A The complainant in CC of the learned XXII Chief Magistrate and X)(iV_pAdd.itio~n._a}Céinialldl'Causes Judge, Bangalore [hereinafter referV'red Court') has ChallfiflgedgiIT«;.'§}1iS iappeal and Order of acquittalifvldated in the said case, acquit_ting -~ accused of the offence under Section. 1338A'ofvI€'egotiab1e Instruments Act. thVe'a-rguments of Sri M R Nanjunda Gowda. .[C0*T".1I'1S€l for the appellant -- complainant and Subrmnanya, the learned counsel for the respondent -~ accused. Perused the impugned Juldgment and Order of acquittal and the entire material €& 3 found in the original records obtained from the Trial Court in the said case.
3. The case of the appellant --«~ complainant, as averred in his complaint and also as statedV.'__inj' affidavit sworn to as his evidence in_.e2s;_amii--1ati4on--i11:VV chief, is that the respondent ~%:_ 3 rm:-7* him a hand loan of Rs;1.,_5O,(3f3OC;)'/--
construction of his housed»'=pron1ising._V:that} the said amount would be ,,five"rnonths and, since he did not repay promised, the comp.iaiiian.t repayment of the same and therefore' on the respondent - accused to tthevpopmplainant the cheque in question ~ V.Vb~earing..Nr§joe0o92 for Rs.1,50,000/--. Further case of that the said cheque, on being presented to it the.._ Bank, came to be dishonoured for want of Vsufficient funds in the account of accused and therefore 3 Vtfihe got issued the statutory notice dated 3.3.2004 to the accused and iatter, in response thereto, sent his reply notice dated 17.3.2004 [EXPQJ instead of complying with the said notice by making payment of _ under the said cheque.
4. The Tria} Court, on apprecigati'on'tVof PW.1 complainant and acc'used_,u to Pay' Froduced by the CQmp1aina,;r1"t 'Exs..D.1§ to D31 produced by the accu'se'd§;im;p'u.gned Judgment and Order, acqluvittecliithe of the said offence.
5. learned counsel for the appe1iant= --V «strongly contended that the Tris-iCourt cvomrnittedvsserious error in holding that the .. «. has estafbiished his defence that he had issued to one Shivakumar Reddy and Govinda Raddy' 'wit'hfout filling the amount therein, the said ..Shiyai§nmar Reddy and Govinda Reddy had obtained if the accused the said cheque aiongwith three other if " '*'cheques promising him to get the loan sanctioned from r__"S"""\/-\---.
5 some financial institution and the said persons misused the cheque in question through the complainant and therefore the impugned Judgment and of acquittal deserves to be set aside and_.t{h'e"
deserves to be convicted of the said offe-ncepti . '- _
6. Per contra, the learned counsel for there-spyonddenti T M accused strongly contended that the accused ihadiifiied re his complaint (EX.D26) before."tthe Po'li.ce'iC-ornrnissioner, Bangalore against V fieddy and Govinda Reddy on :i.e".'~Vondesttionth earlier to the date stating that as many as four cheques cheque was taken. from him by said Siiiyakufnar Reddy and Govinda Reddy »A ;VproIn.iAsing.:t'hat they would get the loan of Rs.1,00,000/«~ it M/s.Vijayalakshmi Finance and Mu/s,Srinidhi Finance, but they failed to do so and did not.' return to the accused the said cheques and that they would misuse the same. He further submitted that ~i 6 the complainant failed to establish beyond reasonable doubt that he lent the said amount to the accused on 2.9.2003 and that the accused issued him £3x.P2 cheque towards repayment of the same and therefore:
existence of legally enforceable debt as "
Ex.P2 cheque has not been prof;fed§'" « p_ 7'. It is not in dispute that the lcomplaifnantt' 'not; produced any material, his' eifidence, to substantiate his cas;e"t_hat'tlhe'Vt-- to the accused on the saidiydatey thatthvet-V"accused issued the s-aid.__:on towards repayment of the said loan: is the reply notice issued by accused " complainant in response to the »A ;'statu.tory{notice Ex.P5 dated 3.3.2004, which was it by the complainant consequent upon disiizonour of EXP2 cheque.
On perusal of the contents of the said reply notice _.:%(Ex.P9) and also the oral evidence of SW. 1, it could be ' seen that he has taken consistent defence in the said notice and also in his oral evidence that he ha.d___given four blank cheques in the year 2003 Shivakumar Reddy and Govinda Reddylais . promised him that they would lloanlgyf - b T A' sanctioned from M/s.Vpijayalaksl1mi pFi;na'11ce,'=--r despite they failing to get tlieyloan and they did not return the otherdocuments to the accused and his complaint before the Coniniissioner"a--gainst the said two persgolnsll thelrcopy of complaint dated accused against the said ShhraltumarilRecidy-and Govinda Reddy. On perusal of atfcrmepnts in the said complaint, it could be alleged therein that four cheque bearing to 060094, including Ex.P2 cheque bearing ..No.().6{Js092, were given by the accused to the said l l"..llS'h1":vakumar Reddy and Govinda Reddy alongwith other "signed documents. The further averment made in the (.-.....,_f""'--as.»-r 8 said complaint is that the said Shivakumar Reddy and Govinda Reddy failed to get the loan sanctioned in favour of the accused, but they did not return the said cheques and other documents and apprehending that they may misuse the said and the cheques, he filed the S»'aid"cor_Ii'p1ainat the Police Commissioner.
9. On careful reading of"'i«cross--eXanii'11a-tioivi DW.iV accused it could be t}_*12at_ is .suggested to him that he filed the said 'including in it, the presentddvicheequeiétfi' thisudsuggestion clearly goes to show «the accused lodged the said complaintd' before the Police Commissioner is not . Adisnuted thevwcodmplainant. The said complaint is (--.r--~*""
and Ex.P2 cheque' said to have been iss«ued"by.it'he accused on 24.2.2004 i.e. one month after the complaint was filed by the accused against the two persons apprehending that they may misuse V' "the said four cheques including Ex.P2 cheque. As 9 rightly observed by the Trial Court in its judgment, this defence of the accused could not be said to be an after thought and, in the absence of any materta1_'44:prodpuc«ed by the complainant to substantiate his "
that he lent Rs.1,50,000/w to ::thef_accused 7 A and the accused issuedp':E.'x.P2'--chequeiony.:'22f.2:.§OOaap towards repayment of the defence of the accuse_.d«.appdea.rs' to.be«.quite"probab1e. It is the settled principle case, the accused defence beyond reasonable doubt!" of accused in the instant case _to'k~~"probab1e, I hold that the Trial, -Court" -not."- Corrlmit any error in amepting' the V" ' flacquitting the accused. For-it the present appeal is disrriisvsed as beingriextoid of merits. 301/ *2 Iudgat