Manjunath K N vs M/S. Silverline Destination Tour ... on 29 October, 2010

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Karnataka High Court

Manjunath K N vs M/S. Silverline Destination Tour ... on 29 October, 2010

Bench: Huluvadi G.Ramesh

IN THE HIGH. COURT OF KARNATAKA AT BANGALORE
Dated this the 29"' day of October, 2010

Before

THE HON'BLE MR JUSTICE HULUVADI G 

Criminal Appeal 228 / 2010
Between..-

K N Manjunath, 45 yrs   

S/0 iate P K nanjappa 1

Prop: Uniq Reality

# 48, 1" Main Road, I} Biock

3" Stage, Basveshwaranagar    '   
Bangalme 79 L' _ "ApApe'11anV;
(By Sri M Krishnadas, Adv.)

And:

M/s Silveriine Destination  
By its Partners ' " I  "

  L R3.o, 33Ajfrs~- ---------- 

V' ~w/5 Vé11Aka,;a' «R210

2   43 yrs

sxp"P s W'a;1:m"

# 105", VH1. F3001', Ill Cross

V.   =E.H_.BE_0C'k, 80 Ft. Doubie Road

RM"! II Stage, Bangaiore 94 Respondents

  5""



K)

Appeal is f iied under 3378(4) of the Code of Criminal Procedure

praying to set aside the judgment and order of acquittal dated 25;lr..29.l0--Vv
in Cr1.A 836/2009 by the Fast Track Court XVI, Bangalore.  4' , s-  gt " .

following:
JUDGMENT

Appeal is by the complainant assaililrngthe. order Court XVI. Bangalore in Crl.A 836.[2008'ion .

Although notice is served onfthe Al}lc--,,rerr:ained absent.

The _ boljliedljlpackagehltours for Malaysia, Singapore and Thailand and' 'thls'"plaid Rs.l0 lakhs to the accused. The accused hayirng collected l:a"rnour1t and also having undertaken to send them 'hy_Thai not performed their promise. It arrange'me.*;1t, complainant and others went on tour. Th'e_reafte'r',.Vsihceathert: was no proper co--ordination, complainant and others w'ea_tgon"the.i,_r cm§rrt""21nd ultimately, as per the undertaking for return the amjountufo_r"f.having committed default, the accused has made _lf-«.p.ay':nent of Rs.5;_lakhs and for the remaining amount. issued a cheque for J!"

The Appeal coming on for Hearing thisnday, the ll Rs.5 lakhs. On presentation of the same, the cheque drawn on Standard Chartered Bank, Cunningham Road Branch, Bangalore, caineto' dishonoured for insufficient funds. After issuance of legaii'~.notice,.ti1e' accused neither replied nor paid the amount as such; comp-lain__t 'eameto be filed. The trial court after inquiry having heldthat acc:u'sed"is" guilty: ii of the offence, awarded compensation o'1';l<'{s.5 1als:hs._and--V-lalsioié fine of Rs.5,000/-- and default sentencelof sixsdnion'th.s..ag.ainst which, in the appeal preferred by the accused, a_ppe_i1ate e(3u.rtiwhi.le accepting the contention of the acc?;1sed;i.e.i:inodifiedL the o1'deIt-iof..t.he trial court stating that accused have that'the'y':V'arel"o-nlyliable to pay Rs.l,O6,000/-- and ordered avccorclingiy; .llence',«.£_his__ap_peal by the corrapiainant. Heard the counsel t'o,'r"the' The appellate court. rel.ying"*apon Krishna ianardhana Bhat's case MVAIR "SC: .1325'; opined that inference of preponderance of probabilityiies; can b_e/'d.rawn not only on the materials brought on record by the .party. b'ut:"'a!i,so»V$é§/vh'ile referring to the circumstances upon which it is raised. ""--F*'ur::her;v1iot'ing in the present case, the accused has admitted JV the issuance of cheque and the signature thereon and that it rebuttable presumption, opining that it is the bounden complainant and his friends to produce all vouchers the receipts spent during the trip and, also stating the accusedi'h'i.rnse1.f.__has_ admitted liability to the extent of l,(}6,000/_--, a11o'wAedr.the part. V It is admitted, the cheque be1ori--gs'~ito the";tccused'xand:v"is"duly signed. As per $139 of the Negot.iah'l~e "'instruni'ent.sA the presumption is, the cheque was recoverable debt.

Rather, it is for the accused to .IV'#iere'Vdefense taken by the accused that Rs.H.l,O6,000/-- and not liable to pay Rs.5 and his friends have not produced d4ocurnents.lin»llhatlllreathdiilappears to be unnatural. What was over the cheque for Rs.5 lakhs?

When""the'~lcheque'i~w_as»dishrinrired for insu:fficient "funds, it is an offence. hit was ford"--theV-._accu'sled to offer not only explanation in his probable l_uCie.t'enpseA.bu.t, also he could have produced some material to show the V<;o_pl_ th ldth dh t ttldt 1 th in afiianijra er,avai e eservice an eis no eni e 0e aim e [entire-cheque amotznt, as proof of explanation. By an erroneous JV reasoning, the appellate court reversed the finding of the trial 'eoert which is liable to be set aside.

Accordingly, appeal is allowed while c;ont'ieiﬁii1g"«t:he1 't)'1':l:ei>--g;fij_ trial court. The order of the appellateeourt i.§*--selt'V-aside.iflt. for ljhel accused to pay Rs;.5 lakhs to the Complaiiiaiitanel toltiincllergo simple imprisonment for six 1n0:tths--i_ which shall be forfeited to the State. 2007. Even after lapse of three tieylithelleheqhuelalmount would not cause any hardshipliﬁs tFil:_é'_«21eeL1'5e~clr_.l"=l.7.". it :

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An . '

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