Karnataka High Court
Sri M C Shivappa vs Sri Udaya Kumar Shetty on 11 December, 2023
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CRL.A No. 881 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 881 OF 2013
BETWEEN:
SRI M C SHIVAPPA
S/O M.CHANNAPPA,
AGED ABOUT 50 YEARS,
AGRICULTURIST,
RESIDING AT YALEBETHUR VILLAGE,
DAVANAGERE TALUK,
DAVANAGERE DISTRICT.
...APPELLANT
(BY SRI. JAGADEESH V N., ADVOCATE)
AND:
SRI UDAYA KUMAR SHETTY
S/O GOPAL SHETTY,
Digitally AGED ABOUT 50 YEARS,
signed by RESIDING AT NO.5/0083/2,
SANDHYA S
Location: High 1ST FLOOR, 3RD CROSS,
Court of MRUTHYUNJAYA NAGARA,
Karnataka RANEBENNUR,
HAVERI DISTRICT-581115.
...RESPONDENT
(BY SRI. BALU MAHENDRA Y.H., ADVOCATE)
THIS CRL.P IS FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 03.05.2013 PASSED BY THE III
ADDL. SR. C.J. AND J.M.F.C., DAVANAGERE IN
C.C.NO.2622/2009 (OLD C.C.NO.1578/2008) - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT.
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CRL.A No. 881 of 2013
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant / complainant has preferred this appeal
against judgment of acquittal dated 3rd May, 2013 passed in
C.C.No.2622/2009 (old C.C.No.1578/2008) by the
III Additional Senior Civil Judge and J.M.F.C., Davanagere (for
brevity, hereinafter referred to as the "Trial Court").
2. For the sake of convenience, the parties in this
appeal are referred to as per their status and rank before the
Trial Court.
3. Brief facts of the complaint are that, the
complainant and accused are the friends and out of their
friendship, on 26.04.2007, accused came to the complainant's
village Yelibetur, Davanagere Taluk, and asked for loan of
Rs.4,00,000/- for his urgent family necessity and his daughters
education. Accordingly, the complainant agreed to give a loan
amount with interest @ 2% p.a., and on 26.04.2007 itself the
complainant lend Rs.4,00,000/- to the accused. The accused
agreed to repay the same, within six months and on the same
day, the accused issued post dated cheque bearing No.428920
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dated 26.10.2007 drawn on Syndicate Bank, Branch Byadgi for
Rs.4,00,000/-. The complainant presented the said cheque for
collection through his banker, but said cheque came to be
dishonoured for want of sufficient funds. The complainant
brought said fact to the knowledge of the accused. At that time,
the accused requested two months time to pay the amount. At
the request of accused on 01.01.2008, the complainant again
presented the cheque for collection through his banker Shiva
Sahakari Bank Niyamita, Davanagere. The said cheque came
to be dishonoured for the reason "funds insufficient". The
accused banker issued an endorsement to that effect on
02.01.2008 and same was informed to the complainant on
03.01.2008. Thereafter, on 19.01.2008, the complainant got
issued legal notice to the accused through RPAD as well as COP
to both addresses i.e., residential and bank address calling
upon the accused to pay the cheque amount within 15 days
from the date of receipt of notice. The notice sent through
RPAD served on the accused on 22.01.2008 and the accused
has sent reply notice on untenable grounds just to save his skin
and to escape from the liability. The accused has not paid
cheque amount within stipulated time period. Hence, the
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complainant has filed a complaint under Section 138 of the
Negotiable Instruments Act, 1881. After taking cognizance, the
case was registered against the accused in C.C.No.1578/2008.
Thereafter, it was numbered as C.C.No.2622/2009 and
summons were issued to the accused. Pursuant to issuance of
summons, the accused appeared before the trial Court and
enlarged on bail. As there was sufficient material, plea was
recorded, for which the accused pleaded not guilty and claimed
to be tried.
4. To prove the case, complainant got himself
examined as PW.1 and marked seven documents as Exhibits P1
to P7. On closure of complainant's side evidence, statement
under Section 313 of Code of Criminal Procedure was recorded.
Accused has totally denied the complainant's evidence and
adduced the evidence as DWs.1 and 2 by way of affidavit and
also got marked one document as Exhibit D1. Upon hearing
arguments, the trial Court has passed judgment of acquittal.
Being aggrieved by the impugned judgment of acquittal, the
present appeal is preferred by the complainant/appellant.
5. Appellant's counsel remained absent.
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6. Respondent's counsel has submitted his argument
that the trial Court has appreciated the evidence on record in
accordance with law and facts that there are no grounds to
interfere with the impugned judgment of acquittal and all these
grounds sought for dismissal of the appeal.
7. Having heard the arguments of the respondent and
on perusal of material on record, the following points would
arise for my consideration in this appeal:
1. Whether the appellant / complainant has
made out a ground to interfere with the
impugned judgment of acquittal?
2. What order?
8. My answer for the above points is as under:
Point No.1: in the affirmative
Point No.2: as per final order
Regarding Point No.1:
9. I have examined the materials placed before this
Court. The complainant has filed a complaint against the
accused for the commission of offence under Section 138 of the
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Negotiable Instruments Act, 1881 for dishonour of cheque of
Rs.4,00,000/-. To substantiate the case of the complainant,
the complainant Sri.M.C.Shivappa examined as PW.1 and got
marked seven documents as Exhibits P1 to P7 and on closure of
complainant's side evidence, the accused has adduced his
evidence as DW.1 - Udaya Kumar Shetty, by way of affidavit,
which is not permissible under law. In this regard, I rely on the
decision of the Hon'ble Apex Court in the case of MANDVI
CO-OPERATIVE BANK LIMITED v. NIMESH B. THAKORE
reported in (2010)3 SCC 83 at paragraph Nos.31 and 32. The
Hon'ble Apex Court, has held as under:
"31. On this issue, we are afraid that the High
Court overreached itself and took a course that amounts
to taking-over the legislative functions.
32. On a bare reading of Section 143 it is clear
that the legislature provided for the complainant to give
his evidence on affidavit and did not provide for the
accused to similarly do so. But the High Court thought
that not mentioning the accused along with the
complainant in sub-section (1) of Section 145 was
merely an omission by the legislature that it could fill up
without difficulty. Even though the legislature in their
wisdom did not deem it proper to incorporate the word
`accused' with the word `complainant' in Section
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145(1), it did not mean that the Magistrate could not
allow the accused to give his evidence on affidavit by
applying the same analogy unless there was a just and
reasonable ground to refuse such permission. There are
two errors apparent in the reasoning of the High Court.
First, if the legislature in their wisdom did not think "it
proper to incorporate a word `accused' with the word
'complainant' in Section 154(1)......", it was not open to
the High Court to fill up the self perceived blank.
Secondly, the High Court was in error in drawing an
analogy between the evidences of the complainant and
the accused in a case of dishonoured cheque. The case
of the complainant in a complaint under Section 138 of
the Act would be based largely on documentary
evidence. The accused, on the other hand, in a large
number of cases, may not lead any evidence at all and
let the prosecution stand or fall on its own evidence. In
case the defence does lead any evidence, the nature of
its evidence may not be necessarily documentary; in all
likelihood the defence would lead other kinds of
evidences to rebut the presumption that the issuance of
the cheque was not in the discharge of any debt or
liability. This is the basic difference between the nature
of the complainant's evidence and the evidence of the
accused in a case of dishonoured cheque. It is,
therefore, wrong to equate the defence evidence with
the complainant's evidence and to extend the same
option to the accused as well."
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10. On examination of the aforesaid decisions along
with the provisions of Section 145 of Negotiable Instruments
Act,1881, it is clear that the trial Court has not followed the
provisions of Section 145 of the said Act. Relying on the
evidence of accused DW.1, the trial Court has acquitted the
accused. Since the accused had not adduced his evidence in
accordance with law, the same cannot be looked into by this
Court. Hence, it is just and proper to remit the matter to the
trial Court with a direction to provide opportunity to the
accused to adduce his evidence, in accordance with law.
Accordingly, the complainant has made out a ground to
interfere with the impugned judgment of acquittal and also to
remand the case to the trial Court. Hence, I answer Point No.1
in the affirmative.
Regarding point No.2:
11. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
1. Appeal allowed;
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2. Judgment of acquittal dated 3rd May, 2013
passed in C.C.No.2622/2009 (Old
C.C.No.1578/2008) by the III Additional
Senior Civil Judge and J.M.F.C.,
Davanagere, is set aside and the case is
restored to file;
3. Matter is remitted back to the trial Court
with a direction to provide opportunity to
the accused to adduce his oral evidence in
accordance with law and also as per the
judgment of the Hon'ble Supreme Court as
observed by this Court in the body of the
judgment;
4. The trial Court is also directed to provide an
opportunity to both the parties to adduce
their additional evidence, if any;
5. The accused /respondent is directed to
appear before the trial Court on
10th January, 2024, without seeking any
further notice from the trial Court in this
regard;
6. The trial Court is directed to secure the
presence of the complainant and dispose of
the case, within six months, from the date
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of appearance of both the parties, as the
matter is old one of the year 2008;
7. Registry to send the copy of this judgment
along with the trial Court record to the trial
Court, without any delay.
Sd/-
JUDGE
KG
