B. SHIVARAM Vs. M.V. VENKATESH

JUDGEMENT

(1.) THIS is the appeal preferred by the complainant being aggrieved by the judgment and order dated 30.6.2010 passed by the XV Addl. CMM Court, Bengaluru City in C.C. No. 16364/2009.

(2.) BRIEF facts of the appellant -complainant's case before the trial court is that respondent -accused availed the sum of Rs. 3.00 lakh from the complainant in October 2008 for his urgent needs and towards repayment of the said amount, the respondent -accused issued a cheque in favour of the complainant for the sum of Rs. 3.00 lakh dated 14.3.2009 drawn on Syndicate Bank Gandhinagar Branch, Bengaluru. The complainant presented the cheque for encashment through his banker State Bank of Mysore, Mysore Road, Bengaluru and it was dishonored with endorsement 'insufficient funds' and 'account dormant'. The complainant issued a legal notice as per Ex. P.6 through his Counsel by RPAD calling upon the respondent -accused to pay the amount of cheque. In spite of service of notice, the respondent -accused had failed to pay the amount stated in the cheque. Hence, the complainant filed a complaint under Section 200 Cr.P.C. before the trial court. As per the summons, the respondent -accused appeared before the court and trial was held. Ultimately, the trial court by its judgment has, considering the oral and documentary evidence, i.e., the evidence of P.Ws.1 and 2 and the documents Exs. P. 1 to P. 11 and Ex. D.1, acquitted the accused holding that the complainant has failed to prove the case against the respondent -accused. Being aggrieved by the same, the appellant -complainant has preferred the preset appeal on the grounds that the trial court has not applied its mind properly while passing the impugned judgment and order. It has failed to take note of the documents furnished by the appellant -complainant at the time of evidence which clearly indicates the deliberate intention of the respondent -accused in issuing the cheque and committing a crime as per Section 138 and 142 of the Negotiable Instruments Act, (for short 'the Act') beyond any reasonable doubt. The reasons adopted by the trial court for acquitting the respondent -accused are erroneous. The trial court has ignored that the respondent -accused has utterly failed to rebut the presumption raised under Section 139 of the Act. The trial court has also neglected to consider several judgments of the Hon'ble Supreme Court and of this Court while passing the judgment. The judgment is based on conjectures and surmises and it needs perusal of the entire case records to set aside the judgment and to convict the respondent -accused. Hence, the appellant -complainant sought to allow the appeal.

(3.) : JT 2002 Vol. 6 S.C. 119 (I.C.D.S. Ltd. v. Beena Shabeer and Anr.)