Karnataka High Court
Sri N Muralikrishna S/O Late N. ... vs Smt M Vasantha on 14 December, 2010
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HXGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 14"" DAY OF DECEMBERQAIO
BEFORE " A'
THE HON'BLE MRJUSTICE HQLUVABEAAAGARAMAESH A A
CRIMINAL APPEAL 1\"l0.>2,A2§iA(3?-E 2009" A T
BETWEEN:
Sri.N.I\/Iuraiikrishna,
S/0 late N.Nagabhusha f'~%i{?l3a, "
Aged about 42 years,
No.15, 2'" cross,
Ayyappa Block," _
3" Main, Viv;ékaE}1a'ga1'?
BangaI()r6t>3'6(5Q47-.v-71;_ A
(B y Sri'.'S.._P§Ku1k'afh'iA;A'Adv.,5A'
. A Smt.M.V_asj¢ir1--tha,
ged aVi3Q_ut 48 ypars,
~Pr0;:r: Sri.C:Aani:As'h T1*ade1's,
No,263_ Kfiamarzij Road,
Bahga10.[e~560042.
Also available at
A. N'()';A3O, Ambujammal Gadi,
A Chelvaraya Chetty High Schooi,
St. John' S Road,
-BangaE0re~560042.
..APPELLANT
"RESPONDENT
(By Sri.K.Narz1yana and S1'i.B.A.Sot;1éan11a, Advs.) 33?' This Criminal Appeal is filed under Section":33l§:'(;il)vv.,oi' Cr.P.C. praying to set aside the Ijudgnient/orde§"o'f dated 21.2.09 passed by the XIII Addl. CMM';«,__VBai;ga'iore.in C.C.No.23l l/2003 -- acquitting the,ifesppondentI'acct1sed for the". offence P/U/S.l38 of N.I.Act.
This Criminal Appeal cit-m'i~ng onhfor heari.ng".th'is~~dé1y, the' Court delivered the following:
This appeal is by.wethe jctirnpieapiiliiaiitl'challenging the order of the X111 A€li.d1.iieC:l:\{1i\/ll,: .i3edga1e§;~e, intC;C.No.231 1/2003 dated ,
2. A«€;co:'dir1gii~toVt:he complainant, accused and the coiniplainant are faniily friends. Accused had borrowed a sum the complainant and had issued a cheque CliI'&.,\__t\/fl Bank Ltd, Indiranagar Branch, Bangalore ,detedsdi09.2o02 towards discharge of the liability which, on 'A-presentation for encashment, came to be returned with an "endorsement 'insufficient funds'. Thereafter. notice was issued 9 and for non--payment, the complaint vglas filed. The trial Court, V after enquiry, has dismissed the complaint relying upon Krishna Janardhan Bhat's case and some other cases and a1so_..on the ground that there is no service of notice.
3. Heard. _ 3"
4. Ex.P7 is the returned sent.,to'~the 2 wherein there is an endorsemeiitspiiby theipostal. eo the effect that 'left, return.e"d~..to sendeirfiéaddressi to which the notice was sent is not iVnV_di.sp:'i_te.:i Section 27 of the General Clauses"A'et,i 'theendorsernent is the person has left and sent b_ac'if_iito.«"the sender, then necessarily there is if " _ dee_ri1ed.i service oifinotice.
_ stand of the accused isrthat the complainant and accused_ are not acquainted with each other. But whereas according to the complainant, accused and the complainant are 1'a.rr1F1'ily friends. Though in paragraph 6 of the order the trial as Court has observed that there is a deemed service of notice, but W in the next paragraph it has opined that the complainant has failed to prove the service of statutory notice, which contrary to its own observation i.n the earlier paragraph.
6. In the case on hand, vvhether__the,_complainant paid,' an amount of Rs.1,50,000/-- to ltheiaccused andivheltvherllthere is a transaction between't:h'em dlealtlby the trial Court, after affording parties to lead additional i_n the case of RangamtiniiiA1R 2010 SC 1393 has held that,' :J3__ig.ne'qtl i_s issued in a transaction by the accused. to the}. co--rnp~lainant, it is to be presumed that the
-is.suedlto'Wards a legally enforceable debt and, i_t is 'for ltl'.(;'_TaCCtlS'é';Cl_:.~{0 disprove the same by way of negative onus not only' offering explanation, but proof of explanation has .. to be offered.
7. In view of the above, appeal is allowed and the impugned order is set aside. The gmatter is remitted to the trial %/ Court for disposal in accordzlnce with law, if need _ be by allowing the parties to lead additional evidence. Ot'ffiee.. back the records forthwith.
Parties are directed t0>appeal7~ljel'Q1e 17.01.2011. Thereafter, withlfil'e:.lli1'ee 1"nmal£h1s,lCourfl shallciispose ofthe V' 'V V
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