Karnataka High Court
N Kumar S/O M Narayana vs T V Gopalakrishna on 2 September, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRL.R.P.NO.1419/2010 C/W. CRL.R.P.NO.1420/2010
& CRL.R.P.NO.1425/2010
CRL.R.P.NO.1419/2010:
BETWEEN:
N KUMAR S/O M NARAYANA
MAJOR, R/A NO.39/7
7TH CROSS, 7TH MAIN
PIPELINE, CHOLURPALYA
BANGALORE-23.
... PETITIONER
(BY SRI AHADULLAH KHAN, ADV. FOR
SRI K N SUBBAREDDY & SRI VIVEK S REDDY, ADVS.)
AND:
T V GOPALAKRISHNA
S/O CHALAMAIAH
AGED ABOUT 52 YEARS
R/A NO.1028/3, 3RD CROSS
15TH MAIN, BSK IST STAGE
BANGALORE-50.
... RESPONDENT
(BY SRI MANJUNATH B R, ADV.)
THIS CRL.RP FILED U/S.397 R/W SEC.401 CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER DATED 23.7.09 PASSED BY THE V ADDL. JUDGE
COURT OF SMALL CAUSES AND 24TH ACMM.,
BANGALORE IN C.C.NO.29075/06 AND ALSO SET ASIDE
THE IMPUGNED JUDGMENT AND ORDER DATED 12.10.10
PASSED BY THE ADDL. S.J., AND P.O., FTC-III, MAYO
HALL UNIT BANGALORE IN CRL.A.NO.25085/09.
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CRL.R.P.NO.1420/2010:
BETWEEN:
SMT.DHANALAXMI
W/O M NARAYANA
R/AT NO 39/7
7TH CROSS, 7TH MAIN
PIPELINE, CHOLURPALYA
BANGALORE - 23.
... PETITIONER
(BY SRI AHADULLAH KHAN, ADV. FOR
SRI K N SUBBAREDDY & SRI VIVEK S REDDY, ADVS.)
AND:
T G NITHIN
S/O T V GOPALKRISHNA
AGED ABOUT 22 YEARS
R/AT NO.1028/3
3RD CROSS, 15TH MAIN
BSK I STAGE, BANGALORE 50.
... RESPONDENT
(BY SRI MANJUNATH B R, ADV.)
THIS CRL.RP FILED U/S.397 R/W SEC. 401 CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER DATED 23.7.09 PASSED BY THE V ADDL. JUDGE
COURT OF SMALL CAUSES AND 24TH ACMM.,
BANGALORE IN C.C.NO.29096/06 AND ALSO SET ASIDE
THE IMPUGNED JUDGMENT AND ORDER DATED 12.10.10
PASSED BY THE ADDL. S.J., AND P.O., FTC-III, MAYO
HALL UNIT BANGALORE IN CRL.A.NO. 25084/09.
CRL.R.P.NO.1425/2010:
BETWEEN:
M NARAYANA
MAJOR R/AT.NO.39/7
7TH CROSS, 7TH MAIN
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PIPELINE, CHOLURPALYA
BANGALORE - 23.
... PETITIONER
(BY SRI AHADULLAH KHAN, ADV. FOR
SRI K N SUBBAREDDY & SRI VIVEK S REDDY, ADVS.)
AND:
T V GOPALAKRISHNA
S/O.CHALAMAIAH
R/AT.NO.1028/3, 3RD CROSS
15TH MAIN, BSK IST STAGE
BANGALORE - 50.
... RESPONDENT
(BY SRI MANJUNATH B R, ADV.)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
SENTENCE DT.23.7.09 PASSED BY THE V ADDL. JUDGE
COURT OF SAMLL CAUSES & XXIV ACMM., BANGALORE
IN C.C.NO.29074/06 AND ALSO IMPUGNED JUDGMENT
AND SENTENCE DT.12.10.10 PASSED BY THE ADDL. S.J.
AND P.O. FTC-III, MAYO HALL UNIT, BANGALORE IN
CRL.A.25086/09 AND ALLOW THIS CRL.R.P. AND ACQUIT
THE PETITIONER.
THESE PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
There are concurrent findings of the courts below that petitioners - accused have committed an offence punishable under Section 138 of the Negotiable Instruments Act.
2. The law is fairly well settled that this Court while exercising power under Section 401 Cr.P.C does
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not sit as a Court of second appeal. This Court can interfere with impugned judgment, if it is demonstrated that there are glaring errors in appreciation of evidence by the courts below or that courts below have committed glaring errors of law resulting manifest injustice.
3. The learned counsel for petitioners has made following submissions:
The complainants had failed to establish that they had sufficient funds to lend to accused. The accused had filed first information against complainants alleging that they had stolen cheques from house of accused and had misused cheques to initiate instant complaint.
4. The learned counsel for petitioner would submit complainants in C.C.Nos.29075/2006, 29096/2006 and 29074/2006 are son and father respectively. In the complaint of Crl.R.P.No.1420/2010, complainant has not stated that his father has not lent money to mother of accused. The accused in C.C.Nos.29075/2006, 29096/2006 and 29074/2006 are father, son and the
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mother and they have been falsely implicated by misusing cheques stolen from their house.
5. The learned counsel for respondents would justify the impugned judgment.
6. The trial court and the first appellate court on appreciation of evidence have recorded a finding that complainants had financial capacity to lend money to accused. The trial court, as also first appellate court, on appreciation of evidence have held that defence of accused complainants had stolen cheques to initiate instant complaints, is far fetched and un-believable.
7. In a complaint filed under Section 138 of the N.I Act, complaint should contain averments to constitute the offence. It is unnecessary for complainants to narrate all transactions between complainants and accused or family members of complainants and family members of accused.
8. The learned counsel for petitioners-accused would submit that appellant in Criminal
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Revision Petition No.1420/2010 had purchased the property. Therefore, there was no dearth for money for the family of accused.
9. If the family of petitioner viz., parents of petitioner and petitioner had abundant money in the bank accounts held by them, they should have produced the passbooks to prove that they were not in need of money and they did not have necessity to borrow money from complainant. The contents of the Sale Deed do not prove that accused and their family members were financially affluent. The failure of petitioner to produce bank passbook to prove availability of funds would lead to an inference that petitioners-accused have withheld best evidence and an adverse inference has to be drawn against for withholding evidence. The accused have failed to rebut the presumption available in favour of complainants under Section 139 of the Negotiable Instruments Act.
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10. In the circumstances, there are no reasons to interfere with the impugned judgments. The petitions are dismissed.
Sd/-
JUDGE nas.