Karnataka High Court
Sri B Muralidhar Rao vs Sri Dinesh Shetty on 19 July, 2010
1 Crl.A 1496/07
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19"*DAY OF JULY, 2o10x7n"r
BEFORE:
$33 HON'BLE MR. JUSTICE A.s. PACHAAQUAE
CRIMINAL APPEAL No.i493v9§ éa0Tr'Axfa'"n
BETWEEN:
B. Muralidhar Rao,
S/o. Vasudeva Rao,
Aged 44 years,
R/o. Devi Kripa, lw,ik
Bala Post, Katipalla; V_: , ._,V v
Surathkal, Mangalore;'1hV _._""~w1.. APPELLANT/S
[By Sri. Kim; flatarafi}&Adv{}V
Dinesh Shétty, . A _;
S/o. Krishanadshetty, "
.. Adu3s.tE« V .
; '%ManjpSh;eeh Kadambodi,
7_ Surathkal,eMangalore. ... RESPONDENT/S
"[By_SfitjH$anjula, Amicus Curiae]
**'k
n 'a:hi$ Crl. Appeal is filed u/Section 378(4)
"Cr:P,C. praying to set aside the Order dt. 23.8.2007
xx -fpassed by the JMFC, Mangalore, D.K., in C.C.
V*,uNoi1985/2004 and convict the respondent for the
", offence p/u/S. 138 of N.I. Act.
This Crl. Appeal coming on for Final Hearing,
this day the Court delivered the following:
2 Crl.A 1496/07
JUDGMENT
The appellant has challenged the acquittal 9f the respondent for the charge punishable dae§a¢;_ Section 138 of the Negotiablep rhattaeeatafi hat f {hereafter referred to as "the Act" for sha§e§.§hg§ trial held by the .n»mc., Vfliaungalorhe, 5
2. The facts relevant for the purpose of this appeal are:
The apheilaht,7 hetalh'; is "Wtha complainant, whereas the_--teahahdehtI'la"'thex accused before the trial gbourtifip alt -ishuaverred that the appellant approached*the'complainant on 25.05.2004 for a hand"
loan ta the tune of §'a.2,50,000--00 and as he knew "atheuaccgged well} paid a sum of Rs.2,50,000--00 in hcash'ona2E:00;2004. Towards repayment of the hand- lotandthel adeaised issued a cheque dated 25.05.2004, fdrawn onxsyndicate Bank in favour of the complainant ;withH_an instruction to present the cheque on .j25g0sf2004 and promised that necessary arrangements 'yifiould have been made for its encashment. The complainant presented cheque, which returned with endorsement "account closed". Later the complainant DJ...
3 Crl.A 1495/O7 issued a demand notice dated 07.06.2004. The demand made in the notice for repayment of the loan amount was not complied. Hence the appellant F¥uas constrained to file a complaint fgsrfighésjosrégbep"
punishable under Section 138 of the Act. "=' The accused appeared 2% Hig.filea neg gecordedl and the complainant Was examined as P.m l; In his evidence documents VE¥;.§:p §gfiu7lsnere marked. The statement of the accused was ;ecorded under Section 313 Cr.P.C. filfiéi has igékéfi lthe" defence of total denial. the ag;gse;*ags examined as D.W.1 and a witness h.W}§ and in their evidence got marked the cheque--fix.Dl. ' the triat Court on appreciation of the material lone record granted an acquittal and 3"aggrieved by the same, the appellant has preferred V'--,t'h:.1'. 3;" "app.eaJ. ' 33-." 3 have heard the learned counsel for the u"% appellant; and the learned Amicus Curiae for the '= respondent.
4. The point that arises for my consideration 9-Q. is;
4 Crl.A 1496/07 Whether the Judgment and Order acquitting the respondent for thel"
charge under Section 338 of the Act 3s*dkd< illegal and perverse?
5. It is the contention or the learned aaugsel' for the appellant that the accused had adfiittedltheo receipt of loan. of" Rs.2p5dgCO0~OO',andl issuance of the cheque for the said afiount and he has also not replied the notice. aln the circupstances, it is his submission that the tri§i.tafi;; cocmitted an error in granting Tanufcrder[*ort_acquittal. Hence, he submitg to ggiak the appeal and to award conviction under Section l3B or th§.Act.
Ber contra, the learned Amicus Curiae supported 'VVthe[§udgment and Grder of the trial Court. '5_$;WTHl have scrutinized the material placed on record pincluding the documents produced in the l"apevidencef Though the complainant in rue; evidence '* states that the accused issued a cheque for xd=:pRsi2,50,000~OO under his signature, the said fact ;"has been disputed and it is contended that the "9 accused used to receive a loan of Rs.5,000--O0, Rs.10,000--00 etc., whenever needed and as a security: 6 Crl.A 1496/07
with regard to his financial capacity and holding a cash amount of Rs.2,50,'00O-00. Though4...li.nr~._the complaint, he states that he has amount from his uncle, he has not examinieidv it is under these circumstan:ces'_pthat ' note was entered into forgcan amount So, this fact which is admiiitted of the party reveals thsatfi 2"V,VV50,00O--OO was not advanced have been advanced by matter came to be settled the proceedings.
But, 't~hev"§cheque issued by the accused, 'payment of Rs.50,000--O0 by way of to be dishonoured for insugffiicient V"f.unds.v A separate proceedings was taken the complainant in this regard and the a"ccu"sed"~:hasfheen convicted. Merely because the second checfue at Ex.D1 has been bounced is not a bi '"'--__vgroundzt,o:' infer that the accused had issued a cheque . 2, 50, OO0-00. The accused has been examined D.W.1. In his evidence he states that he has ifissued a blank cheque with his signature as security for an amount of Rs.5,000-00 or Rs.l0,000--00 whenever borrowed from the complainant. It is now Dax.7 Crl.A 1496/07
doubt true that after issuance of the legal notice, the accused has not replied the same. p,$ut,p an adverse inference to the extent of the liability of Rs.2,50,000--OO cannot be raised. rw:£f,as§ .be! a "» circumstance to favour" the complainant " dsufiy that itself will not raise a guesumptionregarding thee transaction for Rs.2,50,00Ue@C. The trial pourt has taken into consideration the eyidence of b,Ws.1 and 2 regarding the settlement claim §er.Rs.50,000--00.
Though the 'complaint ymas1pfigyZrS@gnO0wOO and has granted an drder of acgvittal, the learned counsel invited uattenticn, ore thiemufiourt in the cross- examination ot*fi£W.l}Efiherein it is stated by the complainant "where ta" suggestion is made regarding V advancement Voip an: amount of Rs.2,50,000--O0 on uV_ humanitarianv grounds and harassment caused by the Aaccused, "by fnot paying- the said amount, the said suggestion has been denied. So, the sentence has to 'Tube used" as only one sentence wherein denial i" regarding receipt of Rs.2,50,000w00 by the accused. R"g In the circumstances, taking into consideration the ymaterial placed on record, I am of the opinion that the trial Court on proper appreciation of the evidence led has come to a right conclusion ;E::M 8 Crl.A 1496/07 dismissing the complaint. I do not find any merit in this appeal.
8. This is an appeal against the acquittal and _ the appellate Court will be slow in interfering with f' such an Order. Even if a se§gnagvie§.;5ip§é§1§i¢, the one accepted by théhrprial pconrtihcanndt bed disturbed. So taking into consideration these facts in the context of r§a§p;e§i;p%5nj§f,:he material on record reveals that fine appellant has not made out any ground to narrant ifiéerfegaficéf Hence I answer the point _inpfinegatineddand flproceed to pass the followi-l1g:iv " it"
ORDER _pThe1appealiiswdismissed.
A* a The fee of the learned Amicus Curiae is fixed ' i' at Rs.3{UQd¥OO and the same shall be paid by the " mfa State fievernment.
sd/* "
jg'-DGE Ksm*