IN THE HIGH COURT OF KARNATAKA AT BANGALORE CRL APPEAL /2012

BETWEEN: Kushal Sagar AND: G. Narayan SYNOPSIS SL.NO DATES 18/10/2008 EVENTS C.C NO 497/2008 is filed by the complaint against the respondent for the offence punishable under section 138 of Negotiable Instruments Act, on the file of Fast Track Court at Sagar. The respondent appeared and pleaded not guilty. The appellant himself examined as PW1 and got marked EX P1 to EX P6. The respondent has not lead any evidence nor marked any documents. 30/08/2012 The Trial Court by its Judgment and order Acquitted the Respondent . Hence the above appeal by the complainant / Appellant. Respondent Appellant

BRIEF FACTS OF THE CASE The Appellant filed the private complaint against the Respondent for the offence Punishable under Section 138 of N.I Act in CC No 497/2008 on the file of Addl Muncif Court at Sagar. The respondent appeared and contested the complaint. The Trial Court after hearing by its order dt 30/08/2012 has acquitted the respondent . The same is illegal and untenable. Hence this Criminal Appeal.

Bangalore: Date: Advocate for Appellant

IN THE HIGH COURT OF KARNATAKA AT BANGALORE (MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 378(4) OF CRIMINAL PROCEDURE CODE) IN THE COURT OF ADDL MUNCIF COURT AT SAGAR C C NO 497/2008 IN THE HIGH COURT OF KARNATAKA AT BANGALORE CRL. A. BETWEEN: Khushal Sagar s/o Balappa age 52 years, Chaithanya Nitting Garments, Ullur(post), Sagar Taluk. (Complainant before trial court) AND: G. Narayan s/o Govindappa, age 59 years, Annapoorna Bekary, S.N Nagar, Sagar, (Accused before trial court) /2012

Appellant in this court

Respondent in this court.

1. That the address of the appellant for the purpose of

service of summons etc, is as shown in the cause title above and that of his counsel Kum Vijaya M.N. advocate, No 1910, 2nd main, K.S.T. Bangalore-60.
2. That the address of the respondent for similar purpose is

as shown in the cause title above.

3. Being

aggrieved

by

the

judgement

and

order

dt

30/08/2012 passed by the court of addl munciff at sagar in C C No 497/2008. The Appellant has filed the above criminal appeal on the following among other facts and grounds to be urged at the time of hearing.

BRIEF FACTS OF THE CASE The Appellant filed the private complaint against the Respondent for the offence Punishable under section 138 of N.I Act in CC No 497/2008 on the file of Addl Munciff Court at Sagar. The appellant claims that the Respondent has borrowed Rs 1.50.000/- from the Appellant for developing his Bekary business. The respondent to discharge the said loan has issued the Cheque bearing no 008657 for Rs 1.50.000/- drawn on Siddapura dt 17/09/2008. The Bank Siddapura, Sagar issued legal notice on Urban Co-Operative bank

appellant has presented the said cheque for encashment on 17/09/2008 at urban Co-Operative Account Closed. The Appellant Branch. And the same has been returned on 19/09/2008 as 23/09/2008 and the same is served on 24/08/2008, in spite of service of notice the respondent has not paid the amount. Hence the appellant filed the complaint. The Trial Court after taking congnizance has recorded the sworn statement and issued summons to the accused. After appearance of accused the Trial Court after hearing by its order dt 30/08/2012 has acquitted the Respondent the same is illegal and untenable . Hence this Crl Appeal.

GROUNDS
1.

The Judgment passed by the trial court suffers from illegality as the same is passed contrary to the established law and the available materials on record.

2.

When the trial court has rightly held that the respondent accused has issued the cheque in question to the appellant for Rs 1.50.000/- in discharge of the legally recoverable debt and the same came to be dishonored and the respondent is responsible for the same. The

further finding of the trial court action under section 255(1) of CR.P.C and Acquitting the accused is bad in law and cannot be sustainable.
3.

When the trial court has rightly held about the financial capacity of the complainant and the intentional act of accused in causing dishonor of cheque, the trial court ought to have convicted the accused.

4.

When the address as mentioned in EX P3 the legal notice dt 23/09/2008 and the address as mentioned in EX P4 the certificate of posting and EXP6 the postal acknowledgement are one and the same, bearing valid and legal seal of the postal authorities. The observation of the Trial Court that the address differs in these documents is totally unacceptable and illegal.

5.

It is well established legal position from various decisions of apex court and Honble High Courts that the certificate of posting showing the address of the accused is to be taken as proper service has not been considered by the Trial Court leading to the wrong conclusion which is liable to be set aside.

6.

When there is a settled position of law that the service of post on a adult member of the family is held to be a proper service the view taken by the Trial Court contrary to this presumption is wholly illegal and unsustainable.

7.

When the accused is clearly admitting the issuance of cheque and signature and the further act of dishonor, the finding of the trial court in acquitting the accused is baseless and illegal.

8.

when the materials on record shows that the complaint has complied all the mandatory requirements of section 138 of N.I Act and has proved the same by producing co-gent evidence the Judgment of Acquittal passed by the Trial Court without taking note off the said evidence vitiates the whole Judgment.

9.

At any rate the Judgment of the trial court is illegal and requires interferences from this Honble Court.

PRAYER WHEREFORE it is prayed that this Honble court may be pleased to call for the records, allow the appeal and set aside the judgment and order of Acquittal dt 30/08/2012 passed in C C No 497/2008 by the Addl JMFC at Sagar and further to Convict the Accused Respondent for offences punishable under section 138 of N I Act and further order directing the Respondent to give compensation of double the cheque amount to the Appellant as per section 357of Cr. P. C in the interest of justice and equity.

Bangalor Date: Advocate for Appellant

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

CRL APPEAL BETWEEN: Kushal Sagar AND: G. Narayan

/2012

Appellant

Respondent

APPLICATION UNDER SECTION 378(4) OF CRIMINAL PROCEDURE CODE The Advocate for Appellant submits as under: For the reasons stated in the accompanying Affidavit, the appellant most respectfully pray that this Honble court may be pleased to grant special leave to file the appeal to the appellant, to challenge the Judgment and acquittal order dt 30/08/2012 passed by the Addl JMFC at Sagar in CC.No 497/2008.

Bangalore Date Advocate for Appellant.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

CRL APPEAL BETWEEN:

Kushal Sagar

/2012

Appellant

AND:
G. Narayan Respondent

AFFIDAVIT I Sri Khushal Sagar, S/O Balappa, Aged about 52 years, R/O Ullur, Ullur(post), Sagar Taluk, today at Bangalore, Do hereby solemnly affirm and state on oath as follows: 1. I am the appellant in this case. I know the facts of the case. Hence I am swearing to this affidavit. 2. To avoid the repetition of facts, the contents of the main appeal may kindly be read as part and parcel of this affidavit. The accused / respondent has committed an offence under section 138 of the N.I.Act.

3.

I am doing garments and woolen business. The respondent has borrowed a sum of Rs 1.50.000/- to

develop his Bekary Business. Respondent issued a cheque for payment of Rs 1.50.000/-. The cheque was bounced. 4. After issuing the legal notice, I have filed the Complaint. The accused has admitted the issuance of the cheque and also admitted the signature on the cheque. The learned judge dismissed the complaint giving a reason that the Registered post is not served to the respondent. Hence this Appeal. 5. I have filed this application for grant of special leave to file an appeal. If the application is allowed, no harm or loss will be caused to the other side. On the contrary if the application is not allowed I will be put to great loss and hardship. I have got a good case on merits. WHEREFORE, for all the above reasons, I pray that this Honble Court may be please to grant leave to file this appeal, in the interest of justice.

Identified by me Advocate Bangalore Date