Karnataka High Court
Siddegowda M vs R Somashekara on 12 December, 2023
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NC: 2023:KHC:45091
CRL.A No. 1005 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1005 OF 2013
BETWEEN:
SIDDEGOWDA M.,
S/O MANCHEGOWDA,
AGED ABOUT 42 YEARS,
R/A NO.495, KOORGALLI,
BELAVADI POST, YELAWALA HOBLI,
MYSORE TALUK - 571 130.
...APPELLANT
(BY SRI. P.NATARAJU, ADVOCATE)
AND:
R. SOMASHEKARA,
S/O RAMASWAMY NAIDU,
AGED ABOUT 43 YEARS,
C/O BOREGOWDA,
GRAMA PANCHAYATH MEMBER,
D.NO.461, NEAR BEERAIAHNA GUDI,
Digitally
signed by BELAVADI, YELAWALA HOBLI,
GAYATHRI P G MYSORE TALUK - 571 130.
Location: High
Court of
Karnataka WORKING PLACE ADDRESS:
R. SOMASHEKARA,
TRITAN VALVES LTD.,
PRODUCTION DEPT., I.D. NO.330,
BELAVADI INDUSTRIAL AREA,
HUNSUR ROAD, MYSORE - 570 018.
...RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED)
THIS CRL.A IS FILED U/S 378(4) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 13.08.2013 PASSED BY THE III
ADDL. I CIVIL JUDGE & JMFC, MYSORE IN C.C.NO.498/2010 -
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CRL.A No. 1005 of 2013
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/complainant has preferred this appeal
against the judgment of acquittal passed by the III Addl. I
Civil Judge & JMFC, Mysore in C.C.No.498/2010 dated
13.08.2013.
2. The rank of the parties in this appeal are
referred in the same rank as referred by the trial Court.
3. Brief facts of the complaint are that:
The accused had borrowed a loan of Rs.2,00,000/-
from the complainant. Towards discharge of the said loan,
accused had issued a cheque for Rs.2,00,000/- and the
said cheque dated 17.07.2009, on presentation, was
returned with an endorsement 'insufficient funds'.
Complainant then issued a notice to the accused to pay
the cheque amount. However, even after service of the
said notice, accused did not repay the cheque amount.
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Hence, the complainant lodged a complaint for the
commission of offence punishable under Section 138 of
N.I. Act.
4. After taking cognizance, the trial Court
registered a case in C.C.No.498/2010 against the accused
and issued summons to the accused. In response to the
summons, accused appeared before the trial Court and
was enlarged on bail. Substance of the plea was recorded.
Accused pleaded not guilty and claimed to be tried.
5. To prove the case of the complainant,
complainant got himself examined as PW.1 and marked 9
documents as Exs.P1 to P9. On closure of complainant's
side evidence, statement of accused under Section 313 of
Cr.P.C. was recorded. Accused had denied the evidence of
PW.1 and adduce his evidence by way of affidavit as DW.1
but no document was recorded on his behalf. On hearing
the arguments, the trial Court acquitted the accused.
Being aggrieved the same, the appellant/complainant has
preferred the present appeal.
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6. Learned counsel for the complainant has
submitted his arguments that the trial Court has not
properly appreciated the evidence on record in accordance
with law and facts. The trial Court has ignored the
provisions of Section 139 of N.I. Act. Though the accused
had not sent any reply notice, the trial Court has held that
the complainant had no financial capacity to lend the loan
amount of Rs.2,00,000/- to the accused. This is contrary
to the decision of the Hon'ble Apex Court. The trial Court
has also committed an error in receiving the evidence of
DW.1 by way of evidence, which is not permissible under
the provisions of Section 145 of N.I. Act. Further, he
submits that if this Court provide an opportunity to adduce
his evidence as to the financial capacity, the complainant
will produce relevant evidence before the trial Court. On
these grounds, he sought to remand the matter to the trial
Court for disposal in accordance with law.
7. Despite service of notice to the
respondent/accused, he remained absent. Hence,
respondent/accused side arguments is taken as nil.
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8. Having heard the arguments of learned counsel
for the appellant and on perusal of records, following
points would arise for my consideration:
1. Whether the appellant/complainant has made
out any grounds to remand the matter to the trial Court
for disposal in accordance with law?
2. What order?
9. My answer to the above points is as under:
Point No.1 : In the affirmative;
Point No.2 : As per final order.
Regarding point No.1:
10. I have examined the materials placed before
this Court. Complainant filed a complaint under Section
200 of Cr.P.C. for dishonour of cheque for Rs.2,00,000/-.
To prove the case of the complainant, complainant-
Siddegowda was examined as PW.1 and marked nine
documents as Exs.P1 to P9. Thereafter, trial Court has
received the evidence of DW.1 by way of affidavit, which is
not permissible under the provisions of Section 145 of N.I.
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Act. In this regard, I relied upon the decision of Hon'ble
Apex Court in the case of M/S. MANDVI CO-OPERATIVE
BANK LIMITED v. NIMESH B.THAKORE reported in AIR
2010 SC 1402, wherein, paragraphs 31 and 32, read 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
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word `complainant' in Section 145(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."
11. On examination of the aforesaid decision along
with the provisions of Section 145 of N.I. Act, it is clear
that the trial Court has not followed the provisions of
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Section 145 of N.I. Act. The evidence of accused by way of
affidavit is not permissible under law. Relying on the
evidence of DW.1 and also non-production of materials as
to the financial capacity of the complainant, the trial Court
has acquitted the accused. Since the accused has 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 an opportunity to the accused to
adduce his evidence in accordance with law and in view of
the opinion expressed by the trial Court, it is also
necessary to provide an opportunity to the complainant to
adduce his further evidence to prove his case.
Accordingly, the complainant has made out grounds to
remand the matter to the trial Court. Hence, I answer
point No.1 in affirmative.
Regarding point No.2:
12. For the aforesaid reasons and discussions, I
proceed to pass the following:
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ORDER
1. The appeal is allowed;
2. The impugned judgment of acquittal dated
13.08.2013 passed by the III Addl. I Civil
Judge & JMFC, Mysore in C.C.No.498/2010 is
hereby set aside;
3. The matter is remitted back to the trial Court
with a direction to provide an opportunity to
the complainant to adduce his further evidence,
both oral and documentary evidence;
4. The trial Court is also directed to provide an
opportunity to the accused to adduce his
evidence in accordance with law;
5. The complainant is directed to appear before the
trial Court on 17.01.2024 without seeking any
further notice from the trial Court;
6. The trial Court is directed to secure the
presence of the accused and proceed with the
matter in accordance with law
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7. The trial Court is directed to dispose of the
matter within a period of six months from the
date of appearance of the accused as the
matter is of the year 2010;
8. Registry is directed to send a copy of this
judgment along with trial Court records to the
concerned trial Court without causing any
delay.
Sd/-
JUDGE
PGG
CT: BHK
