IN. ii IF 1(1(111 (.‘( )L iti OF KARNA [AK: CIRUL Ti BItNUI I A Dl TAR WAI) l)AiED TI-uS fl IF l& 1)AY OF SEPIFMIWR 2011 BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAl APPEAL No. 2615120Q9 HI TWEEN: Sri Veerappa Mallikarjunappa Go eshwar. Age: 56. flee: Business. Residing at Gokul Road. I lubli. 1)1st. I)harwad. - Appellant (B’ Sri Ramachandra Mali. Ad’ nettle) AN I): Sri Santosh Sb Sri Shankar Nimbalkar. (ice: Business. Residing at H.No. 26, 4 th Cross Ramakrishna Nagar, Gokul Road, Hubli, fist. l)harwad. - Respondent (In Sri (LA. Bhat, Advocate) [his Criminal Appeal is filed under Section 397 of Cr.P&. azainst the judgment iii CA. No. I 323 2006 on the tile of the JMFC II Unun. I lubli. etc. 1 his Appeal ei’n)iIi! on for this clay, the Court nude the lol Ion ing: JL’flG%lENT I . 11w learned counsel tar the respondent remains absent. 2. Application, Misc. Cr1. No. 15653/2009, 11w special leave is allowed. 3. The present appeal is preferred against the confirmation of the order of rejection of the complaint on the ground that the complainant had failed to establish that the cheque issued was 11w the satisfaction of a legal liability and it is in that background that the present appeal is filed. It is to be seen that the appellate Court had relied upon the judgment rendered by the Supreme Court in Krixhna Janardhan B/icii Vs. Datta:raya G. /Iegde reported in AIR 2008 Supreme Cowi 1325, to hold that the presumption under Section 139 of the Negotiable Instruments Act, 188 I (hereinafter referred to as Act” for brevity) in so far as the holder of the cheque that unless the contrary is proved, it is to he presumed that the holder of a cheque received the cheque of the nature re1irred to in Section 138 Ihr the discharge of the liability and did not extend to S a whether the cheque was issued iii discharge of a legal liability. has been o’ erruled and has been held to he had law. In the light of the judgment of the Supreme Court in the case of Rangappi I c. Mohan, AIR 2010 £ C’. 1898, which is rendered by a three Judge Bench of the Apex Court laying down the legal position thai the presumption mandated by Section 139 of the Act includes the existence ol’ a legally enforceable debt or liability and it has been held that. to that extent the impugned ohser’ ation in Krichnc, Jancircihan Bhat ‘c case. are incorrect. In thai view of the matter, the appeal ould have to he allowed on this short ground. Accordingly the facts of’ the case are noticed. 4. It is the case of the complainant that the complainant and accused were businessmen and they were engaged in transport business, they were acquainted for over I 0 years and they had maintained a cordial relationship. The accused is said to ha e sustained loss in the business in the year 2004 and he had approached the complainant tbr financial aid and had availed a loan of’ ? I , 1 0,000;— in May 2004. The complainant had paid a 4 the amount by way of a cheque drawn on Punjab National Bank, Hubli dated 45.05.2004. The same was encashed by the accused and he had promised to refund the money after a period of 3-6 months. When a demand was made at the later point of time, the accused postponed repayment. It is after much persuasion, that the accused ultimately issued a cheque for !1,40,525/-. When the same was presented through the banker of the complainant, the same was returned dishonoured for the reason that funds available in the account of the accused were insufficient. This having been intimated to the complainant, the complainant had issued a legal notice which was returned with the postal sharah that it was not claimed and thereafter the petitioner had initiated proceedings. 5. The trial Court had allowed the complaint holding that the accused was guilty of the offence and it imposed punishment to undergo simple imprisonment for a period of one year and also to pay a fine of !5,000/-, in default, to undergo a further simple imprisonment for six months. He was also S liable to prey con pensat.ion of 1.. ,45,525/ within 3() days, 1d.i I ing whic.h, t..he.. .Deputy Commiwioner was directed to the amount as a rre•srs I a.nd revenue and to pay the same to the complainant. 1 hat •hein challenged, in appeal by the ac..cused, the appellate Court has set aside t.he judgment of the t.ria.l Court on t.he orounds aforesaid, It of which is under challence. 6. in ‘r i ew of the law laid down h the Apex Court i. n the case of Ranappa Vs jiaChan su’pra, the appeal stands allowed, J ud’ment the appel late Court is set aside, 1Th.e jud.ment of the trial (‘,:.ourt. is confirmed. Sd/a 3UDGE