IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR.JUSTICE R.DEVDAS CRIMINAL APPEAL NO.143 OF 2018 BETWEEN SMT. LATHA MURTHY WIFE OF SRI.V.SEENIVASAMURTHY, AGED ABOUT 52 YEARS, RESIDING AT NO.151/02 2ND CROSS, BYRASANDRA MAIN ROAD, JAYANAGAR 1ST BLOCK EAST, BANGALORE- 560011.
(BY SRI. THEJESH P, ADVOCATE) AND SRI. PAVAN G S S/O SMT. PUSHPALATHA, AGED ABOUT 36 YEARS, RESIDING AT NO.103, MARUTHI KRUPA, 1ST MAIN, 4TH BLOCK, BSK 3RD STAGE, KATHRIGUPPE, VIVEKNAGAR, NEAR 43RD BUS STOP, BANGALORE-560085.
...APPELLANT …RESPONDENT (RESPONDENT SERVED BUT UNREPRESENTED) THIS CRIMINAL APPEAL IS FILED U/S. 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 19.12.2017 PASSED BY THE XXII A.C.M.M., BANGALORE IN C.C.NO.6678/2017 AT DOCUMENTS NO.1 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT R.DEVDAS J., (ORAL):
The appellant is before this Court having filed this appeal under Section 378(4) of Cr.P.C., calling in question the judgment dated 19.12.2017, passed by the XXII Additional CMM, Bangalore City, in C.C.No.6678/2017.
2. Though the notice is served on the respondent-accused, he has remained unrepresented.
3. Learned counsel for the appellant submits that the complaint filed by the appellant has been rejected on two grounds. Firstly, the appellant has not proved her case by producing cogent evidence that she had the financial capacity to lend a sum of Rs.5,00,000/- to the respondent-accused. Secondly, the appellant had lent a sum of Rs.85,000/- earlier in the month of November, 2015 to the respondent- accused and the contention of the respondent- accused is that he had issued a cheque only as a security for the payment for the said amount. That has been accepted by the trial Court. The learned counsel for the appellant submits that during the cross-examination of the appellant-complainant, she has in fact answered to the question in the cross- examination that she had financial capacity to pay respondent-accused a sum of Rs.5,00,000/-. In fact, the appellant had submitted that she had income from agriculture, boarding & lodging and rental receipts, etc.,. However, the learned counsel for the appellant admits that proof of the same were not produced before the trial Court. It is in the light of the factual situation the learned counsel for the appellant submits that the matter may be remanded back to the trial Court and an opportunity may be provided to the appellant to produce all the required documents to substantiate here case.
4. In the light of the submission made by the learned counsel for the appellant, the appeal is partly allowed. The impugned judgment dated 19.12.2017, passed by the XXII Additional CMM, Bangalore City, in C.C.No.6678/2017 is hereby quashed and set aside.
The trial Court is directed to issue notice to the respondent-accused and afford an opportunity to the appellant-complainant to produce additional documents to substantiate his contention that he had financial capacity to pay the respondent- accused.
The respondent-accused may be permitted to cross-examine the appellant-complainant and thereafter the trial court may proceed to hear the parties and pass judgment as expeditiously as possible, in accordance with law.
Office is hereby directed to return the Lower Court Records to the trial Court, forthwith.
It is ordered accordingly.
Sd/- JUDGE DL