Crl.A. No. 50 of 2005 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 50 of 2005

K.V. THIPPESWAMY (D) BY LRS. ..... APPELLANT

VERSUS

 STATE OF KARNATAKA    .....   RESPONDENT

O R D E R

1. We have heard the learned counsel for the parties.

2. Concededly, the appellant has died and this appeal  

is being pursued by his legal representatives.   

3. As per the evidence on record, the demand had been  

made, the money had been paid over to the accused and  

had been recovered from him.  The phenolphthalein/sodium  

carbonate test also proved positive.   

4. The  learned  counsel  has  raised  primarily  one  

argument  before  us.   He  has  pointed  out  that  the  

complainant himself had not been examined which made the  

very basis of the prosecution case suspect.  We find  

that the trial court and the High Court have dealt with  

this aspect and have observed that when the summons had  

been sent to the complainant they had received back with  

an endorsement that he was hospitalised and was not in a

Crl.A. No. 50 of 2005 2

position to talk. At one stage, a suggestion had also  

been mooted that a Local Commissioner be appointed to  

record his statement in the hospital.  The trial court  

noted  that  it  would  be  a  futile  exercise  as  the  

complainant was not even in a position to speak.  It is  

also clear from the record that the statement made by  

the Public Prosecutor that the complainant  was not in a  

position to appear as a witness had not  been challenged  

by the defence counsel.   

5. In this view of the matter, we find no merit in  

the appeal which is, accordingly, dismissed.  

..............................J [HARJIT SINGH BEDI]

..............................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI MARCH 16, 2011.