2018 (8) TMI 829

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....llate Court in Crl.A.No.725/2010 reversing the acquittal judgment passed by the Court of the XXII Additional CMM and XXIV Additional Small Causes Judge, Bangalore in C.C.No.24880/2007 for offences under Section 138 of the NI Act. 4. The factual matrix of the appeal are as under: The appellant herein was the accused before the Trial Court in C.C.No.24880/2007 for the offences under Section 138 of the NI Act. This case arose from PCR No.13483/2007 alleging that accused and the husband of the accused, namely Shri V.T. Achar had obtained a loan from the complainant for a sum of Rs. 1,50,000/- by executing an on demand promissory note and consideration receipt dated 6.10.2005. It is further alleged in the complaint that the accused has iss....

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....der dated 29.09.2010 in C.C.No.24880/2007. Against the judgment of acquittal passed by the Trial Court in that case, the complainant then preferred an appeal before the First Appellate Court in Crl.A.No.725/2010. The First Appellate Court having gone through the entire evidence on record, allowed the appeal by reversing the acquittal judgment rendered by the Trial Court in C.C.No.24880/2007 and thereby convicted the accused for the offence under Section 138 of the NI Act and sentenced her to pay a fine of Rs. 1,60,000/- and in default to pay fine, to undergo simple imprisonment for two months. Out of the fine amount, Rs. 1,50,000/- was to be paid to the complainant as compensation as contemplated under Section 357(3) Cr.P.C. and the rema....

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....ad been challenged by the complainant before the First Appellate Court under Section 374 Cr.P.C. The said judgment has been reversed by the First Appellate Court. In respect of the point as to whether an appeal can be maintained against the judgment of acquittal for an offence punishable under Section 138 of the NI Act before the jurisdictional Sessions Court under the proviso to Section 374 Cr.P.C., the learned counsel for the appellant brings to the notice of this court a judgment rendered by this court in Crl.P.6072/2014 dated 24.02.2015, wherein it is held that the said point is no longer res-integra, in view of the judgment of the Supreme Court in the case of Damodar S. Prabhu vs. Sayed Babalal H ((2010 (5) SCC 663)). The relevan....

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....n C.C.No.24880/2 007 and hence, the impugned judgment in Crl.A.725/2010 is passed without having any jurisdiction. Hence, in view of the prevailing position of law, the learned counsel submits that the judgment passed by the First Appellate Court in Crl.A.725/2010 requires to be revisited and consequently the impugned judgment requires to be set aside. 7. Learned counsel has also placed reliance in the case of John K. Abraham vs. Simon C. Abraham and another ((2014) 2 SCC 236)), as regards the burden on the complainant to show that he had the means to advance the loan, which is with regard to the merits of the case. The relevant paragraph is extracted as under: "9. It has to be stated in order to draw the presumption under Section 118....