Karnataka High Court

Sri S Kumar vs Sri Shanmugam on 12 December, 2023

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                                                           NC: 2023:KHC:45062
                                                        CRL.A No. 541 of 2014




                     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. 541 OF 2014
                   BETWEEN:
                   SRI. S. KUMAR,
                   S/O SUNDARAM,
                   AGED ABOUT 47 YEARS,
                   R/AT NO.352/A, 6TH MAIN,
                   MANJUNATH NAGAR,
                   NEAR PUSHPANJALI THEATER,
                   BANGALORE - 560 010.
                                                                 ...APPELLANT
                   (BY SRI. MURALIDHARA S, ADVOCATE (ABSENT) )

                   AND:
                   SRI. SHANMUGAM,
                   S/O KANAPPA,
                   AGED ABOUT 45 YEARS,
                   R/AT NO.14/14, SARASWATHI HOUSE,
Digitally signed
by SANDHYA S       4TH CROSS, MANJUNATH NAGAR,
Location: High     BEHIND PRASANNA TALKIES ROAD,
Court of           MAGADI ROAD, BANGALORE - 560 023.
Karnataka
                                                               ...RESPONDENT
                   (BY SRI. H.K. REVANASIDDAPPA, ADVOCATE)

                          THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
                   SET ASIDE THE ORDER DATED 3.5.14 PASSED BY THE XXII
                   ADDL. C.M.M., BANGALORE CITY IN C.C.NO.32716/2009        -
                   ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                   P/U/S 138 OF N.I. ACT.
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                                                     NC: 2023:KHC:45062
                                                  CRL.A No. 541 of 2014




        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 XXII Additional

Chief Metropolitan Magistrate, Bangalore City in

CC.No.32716/2009 dated 03.05.2014, (for short hereinafter

referred to as 'trial Court').

2. The rank of the parties in this appeal are referred to

as per their status before the trial Court.

3. The brief facts of the complaint is that the

complainant and the accused happened to be old friends. The

accused approached the complainant in the month of October

2008 and requested a handloan for Rs.8,75,000/- (Rupees

Eight Lakhs and Seventy Five thousand only) to meet his

business exigencies. Accordingly, the complainant had given

Rs.8,75,000/- to the accused by way of cash in the 3rd week of

October 2008. Accused had promised the complainant that, he

will repay the same by the end of December 2008. The

complainant approached the accused in the 2nd week of

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December 2008 and demanded for the repayment of the

aforesaid loan amount. Accused had issued a cheque bearing

No.910387 for a sum of Rs.8,75,000/- (Rupees Eight Lakhs and

Seventy Five thousand only) dated 17.12.2008 drawn on

Canara Bank, Magadi Road, Bangalore and assured the

complainant that, the cheque will be honoured on its

presentation. Accordingly, the complainant presented the said

cheque for encashment, but the same was returned unpaid

with an endorsement to that effect as "Insufficient Funds".

Thereafter, the complainant got issued the legal notice to the

accused on 03.07.2009 through his advocate calling upon the

accused to pay the said amount. The same is sent by RPAD and

COP. The legal notice is sent through RPAD which was served

on 07.07.2009 and the notice was also sent through UCP,

which was also delivered. Inspite of receipt of notice, the

accused instead of complying the demand made in the legal

notice, sent an untenable reply on 20.07.2009 and thus the

accused has committed an offence punishable under Section

138 of the Negotiable Instruments Act, 1881.

4. After taking cognizance, the trial Court has

registered case against the accused in CC.No.32716/2009 for

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the commission of offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 and summons was issued to

the accused, in pursuance of summons accused appeared

before the trial Court and enlarged on bail. Substance of plea

was recorded and accused pleaded not guilty and claimed to be

tried.

5. To prove the case of the complaint, one witness

was examined as PW1, 9 documents were marked as Ex.P1 to

Ex.P9. On closure of complainant's side evidence, statement

under Section 313 of Cr.P.C was recorded. Accused has denied

the evidence of PW1 and adduced his evidence by way of

affidavit as DW1 and 10 documents were marked as Ex.D1 to

Ex.D10.

6. On hearing the arguments the trial Court has

acquitted the accused. Being aggrieved by the impugned

judgment of acquittal the complainant/appellant has preferred

this appeal.

7. Learned counsel for the appellant is remained

absent.

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8. Learned counsel for the respondent is present.

9. Learned counsel for the respondent has submitted

his arguments that the trial Court has properly appreciated the

evidence on record in accordance with law and facts. The

appellant has not made out any grounds to interfere with the

impugned judgment of acquittal and on all these grounds

sought for dismissal of the appeal.

10. This Court has examined the materials placed

before this Court. To prove the guilt of the accused,

complainant was examined as PW1, 09 documents were

marked as Ex.D1 to Ex.D9. On closure of complainant's side

evidence accused has adduced his evidence as DW1 by way of

affidavit which is not permissible under the provisions of

Section 145 of the Negotiable Instruments Act, 1881. In this

regard, I have relied on the decisions of M/s.MANDVI CO-

OPERATIVE BANK LIMITED v. NIMESH B. THAKORE

reported in AIR 2010 SC 1402, wherein at paragraphs 31 and

32 of the judgment, the Hon'ble Supreme Court has observed

as under:

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"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 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

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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. Further, the Co-ordinate Bench of this Court, in the

case of SMT. H.BHAGYA Vs. SMT. R.SAVITHRAMMA

reported in 2013(1) KCCR 834, relying upon the judgment

of the Hon'ble Supreme Court in the case of M/s. MANDVI

CO-OPERATIVE BANK LIMITED (supra), at paragraph 11 of

the judgment, has observed as under:

"11. So, when the law provides specific procedure

as to how the evidence has to recorded, the same has to be followed as it is and it is only because generally in exceptional cases, the accused is examined and t is the legislative intent that the examination of accused has to be only after he/she enters the witness box. Therefore, the trial Court without looking to the said aspect has permitted the accused to file an affidavit in lieu of chief examination and accepted such evidence and granted an order of acquittal. Though a complainant has an authority to file affidavit in lieu of chief examination, this

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right given to the complainant cannot be extended to an accused. Therefore, without expressing any opinion on merits of the case, I think that the trial Court committed an error in accepting the affidavit filed by the respondents in lieu of chief examination and as there is an inherent defect in procedure adopted, the impugned orders will have to be set aside.".

12. 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

the accused by way of affidavit is not permissible under law.

Relying on the evidence of DW1 along with the cross-

examination of PW1, the trial Court has acquitted the accused.

Since the accused/respondent has not adduced his evidence in

accordance with law, 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 produce his

evidence in accordance with law.

13. For the aforesaid reasons and discussions, I proceed

to pass the following:

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ORDER

1. Appeal is allowed.

2. The judgment passed in CC.No.32716/2009 on

the file of XXII Additional Chief Metropolitan

Magistrate, Bangalore City, dated 03.05.2014,

is set-aside.

3. The case is remitted back to the trial Court with

a direction to provide opportunity to the

accused to adduce his evidence in accordance

with law.

4. Trial Court is directed to issue Court notice to

both parties. After presence of both parties the

trial Court is directed to dispose of the case in

accordance with law, as expeditiously as

possible.