Karnataka High Court
Dr F P Subir Rebello vs Mr R Prakash Kumar on 30 November, 2010
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
» " fo§'Iowing: IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 30"' day of November, 2010 Before THE HON'BLE MR JUSTICE HULUVADI Criminal Appeal Between: Dr F P Subir Rebelio, 56 yrs S/0 late I M J Rebello R/a Tail Trees, Kadri Man galore M60 2' 2007 L A A Appeilant (By sn s Vishwajith Shetty. Adm And: Mr R Prai;ash._ Kutnap, ~51" ' yrs' _ ' S/o NRa:n'acha.ndra. V' _. _ Coffee Cureer, Prolarietoi" of. 'Tasters _Choice"~, C'hikni_=.aga1ur " __ preserVjt::1:y'Vrr'2t. Laksh'mj_VNivas ' Nelio-re Ra.mapura"":?'ost Chicikruagvaiupr Respondent ""}\13peeI'is.Vfi1ed under 3378(4) of the Code of Criminai Procedure Ceifjv»-V'«npraying "to__3 set aside the order of acquittai dated 5.9.2007 in ' 1/2004 by the III Add]. Sessions Judge, D K, Mangalore. The Appeal coming on for Hearing this day, Court delivered the JUDGMENT
Appeal is by the complainant assailing the order _of' Sessions Judge, Mangalore in Crl.A 251/2004 on V oh the complaint filed alleging-errehce ".l1I'l(1l€1":'Si,'l3:8'iftf "then Negotiable Instruments Act r/w S.4()9 and diisghenourx of the cheque, trial court after inquir'y.tsuha«sb c0n\.r1'c.ted=the_;actfusediagainsti which, in the appeal filedVl3y..V_ the the appelléttebourt on the ground that it is not a Company!.aAndi'i»t'is oniyavproprietorship concern, on technicality," a1§iihi--t:sed.Athe ceihp1'aiht reversing the rhtthhg of the trial courtdy ' .
V-iifxccerding to'ith'e""co.mplainant, he is a coffee planter and "st.rp'pV1yir1tg_"'eoffee»._to various customers, on orders. The accused purcillased xlvorth Rs.].9 lakhs and towards part payment, issued a
- '«.___ic-heque dated 2.4.2001 for Rs..l5 lakhs with an assurance that the cheque ' ddwould honoured. On presentation of the cheque, it was returned on with an endorsement 'account closed'. After intimation of the «said fact to the accused by the complainant, after issuance of legal 3 notice, complaint was filed. The trial court after inquiry, has convicted the accused. However, in the appeal filed by the accused, the finding of the trial court has been reversed by the lower appe'li1late.fl'court. Aggrieved, complainant is before this Court.
The reasoning of the lower appellateiieourt is', asltheaccused was ' the Managing Director of R D Curers, of legavi should have made arrangement for payment of . the.,an1ou"nt"'wlii'ch was due towards supply of coffee. theaicontention of the complainant is that the accused Managin_g"'Director. The lower appellate 7cou1_7t-- nvoti'i.ig.._that"s.oiiie amount has been paid by way of transferring the car to the complainant by the accused, and that the compl_,ai§,nant.has failed to show that the cheque was issued for discharge Afiof any uliabliiity-,. throwing the burden on the complainant and accepting thB'Vé1'~SlOfl.lOfu_t_'h€ 'accused probable, dismissed the complaint. ._I.n ch.e£Iue.- bounce cases, in the case of Rangappa Vs Mohan - 2010 1898, it has been held, in View of S139 of the Negotiable gli:stru.rn,ents Act, there is a presumption that the cheque was issued 13?' 4 towards legally enforceable debt in favour of the complainant and it is for the accused to rebut the presumption not only by offeringprobable explanation but, proof of explanation has to be offered. In".the said decision, the approach of the lower appellate court erron.e"ou"s.-- ' K Accordingly, appeal is allowed. Qrder of_-the»..lower.:appellateu court is set aside. Matter is remitted to 'the :_loweriappell'ate' 'eeI.__1_rt'sA::Va'."or disposal of the case in accordanceivyith law; 'after affor'dir1g..opportunity:* to both the parties. Send back the recordslu An