Karnataka High Court
N Munireddy vs Smt R Premavathi on 11 December, 2023
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CRL.A No. 118 of 2014
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. 118 OF 2014 (A)
BETWEEN:
N MUNIREDDY
S/O NAGAPPA REDDY,
AGED ABOUT 57 YEARS,
R/AT NO.502, VRR APARTMENTS,
ADJACENT TO DODDANEKUNDI
BANGALORE-560 037.
...APPELLANT
(BY SRI. A KUMARAVEL, ADVOCATE)
AND:
SMT. R. PREMAVATHI
W/O N.KODANDARAMA REDDY,
AGED ABOUT 46 YEARS,
R/AT NO.259, (OLD NO.249),
Digitally
14TH CROSS,
signed by 1ST MAIN ROAD,
SANDHYA S DODDANEKKUNDI,
Location: BANGALORE-560 037.
High Court of
Karnataka
...RESPONDENT
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE ORDER OF ACQUITTAL DATED 6.1.2014 PASSED BY THE
XIV A.C.M.M., BANGALORE IN C.C.NO.26320/2011 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 118 of 2014
JUDGMENT
The complainant/appellant has preferred this appeal
against the judgment of acquittal dated 6th January, 2014
passed in C.C.No.26320/2011 by the XIV Additional Chief
Metropolitan Magistrate, Bengaluru (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 is that, the accused
being sister-in-law of the complainant has requested to put up
residential construction at his costs and expenses in the
property of the accused bearing Sy.No.102, situated at
Kaveriyappa Layout, Bangalore East Taluk, Bangalore agreeing
to repay the entire construction costs and expenses to the
complainant after completing the same, accordingly, the
complainant has constructed the residential building in the said
property during the month of February, 2008, afterwards, when
the complainant demanded for a total construction cost for a
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sum of Rs.40 lakhs, accused requested the complainant to let
out the said construction building on rent to any tenants
towards interest for the costs and construction, finally the
accused had issued an account payee cheque bearing
No.249410 dated 16.07.2010 for Rs.40,00,000/- drawn on
Canara Bank, Marathahalli Branch, Bengaluru with an
assurance that it would be honoured on presentation. Further,
it is averred that when the complainant presented for
encashment, it was came to be returned on 14.08.2010 with an
endorsement "funds insufficient". Accordingly, the complainant
got issued a legal notice dated 25.08.2010 through RPAD and
UCP, the notice sent through RPAD was served upon the
accused, but though the accused replied to the notice, she has
not paid any cheque amount. Thus the accused has committed
an offence punishable under Section 138 of the Negotiable
Instruments Act, 1881. After taking cognizance against the
accused, the case was registered in C.C.No.26320/2011 and
summons were issued. Pursuant of issuance of summons, the
accused appeared before the trial Court and got enlarged on
bail. Plea for the offence under Section 138 of NI Act was
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recorded and the accused has pleaded not guilty and claimed to
be tried.
4. To prove the case, the complainant got himself
examined as PW.1 and marked 32 documents as Exhibits P1 to
P32. On closure of complainant's side evidence, statement
under Section 313 of Code of Criminal Procedure was recorded.
Accused has totally denied the evidence of PW.1 and adduced
his evidence as DW.1 by way of affidavit and got marked
33 documents as Exhibits D1 to D33. Upon hearing the
arguments, the trial Court has acquitted the accused for the
offence punishable under Section 138 of the N.I.Act. Being
aggrieved by the impugned judgment of acquittal, the present
appeal is preferred by the complainant/appellant.
5. The appellant's counsel remained absent despite
sufficient opportunity. Respondent served and unrepresented.
Hence, arguments on both sides taken as nil.
6. I have perused the material on record. It is noticed
that the trial Court has received the evidence of DW.1 by way
of affidavit, which is not permissible under law. In this regard,
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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
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
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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."
7. 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, and the evidence of
accused by way of affidavit is not permissible in law. Relying
on the evidence of accused DW.1, along with the other
materials, the trial Court has acquitted the accused. Since the
accused had not adduced his evidence in accordance with law,
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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. Hence, I proceed to pass the
following:
ORDER
1. Appeal allowed;
2. Judgment of acquittal dated 6th January,
2014 passed in C.C.No.26320/2011 by the
XIV Additional Chief Metropolitan Magistrate,
Bengaluru, is set aside and the case is
restored to file;
3. Matter is remitted bank to the trial Court with
a direction to proved an opportunity to the
accused to adduce his oral evidence, in
accordance with law and also as per the
judgments of Hon'ble Supreme Court as
observed by this Court in the body of the
judgment;
4. The trial Court is also directed to secure the
parties and after presence of both the
parties, the trial Court shall dispose of the
case, in accordance with law.
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5. Registry to send the copy of the judgment
along with the trial Court record to the trial
Court, without any delay.
Sd/-
JUDGE
KG
