Karnataka High Court
K S Nandish Babu vs Smt. G B Vanajakshi Devi on 14 December, 2023
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CRL.A No. 1699 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1699 OF 2016
BETWEEN:
K S NANDISH BABU
S/O. K C SHANTHANNA,
AGED ABOUT 34 YEARS,
R/AT VIJAYANAGAAR EXTENSION,
HOSADURGA TALUK,
CHITRADURTA DISTRICT - 577527.
...APPELLANT
(BY SRI. DILIP KUMAR., ADVOCATE)
AND:
SMT. G B VANAJAKSHI DEVI
W/O. K. VASANTHA KUMAR,
AGED ABOUT 42 YEARS, TEACHER,
R/AT SOPPINAVARA BEEDI,
MALEBENNUR VILLAGE,
HARIHARA TALUK,
DAVANGERE DISTRICT - 577530.
Digitally signed ...RESPONDENT
by SANDHYA S
Location: High (BY SRI. MAHESH R.UPPIN, ADVOCATE)
Court of
Karnataka THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
1.07.2016 PASSED BY THE I ADDL. DIST. AND S.J.,
CHITRADURGA IN CRL.A.NO.56/2015 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT AND CONFIRM THE ORDER OF CONVICTION DATED
24.08.2015 PASSED BY THE ADDL. C.J. AND J.M.F.C.,
HOSADURGA IN C.C.NO.214/2007.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1699 of 2016
JUDGMENT
The appellant/complainant has preferred this
appeal against the judgment dated 01.07.20216 passed in
Criminal Appeal No.56/2015 by the Court of the 1st Addl.
District and Sessions Judge, Chitradurga (hereinafter
referred to as 'Appellate Court' for short) by confirming
the judgment of conviction and order of sentence dated
24.08.2015 passed in C.C.No.214/2007 by the Court of
the Additional Civil Judge and JMFC, Hosadurga.
(hereinafter referred to as 'Trial Court' for short).
2. For the sake of convenience, the parties in this
appeal are referred to as per their status and rank before
the Appellate Court.
3. The brief facts of the complaint are that:
The accused is the relative of the complainant and has
approached him for financial help for her immediate
domestic needs and also to clear her hand loans,
accordingly on 10.05.2005, the accused borrowed
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Rs.2,00,000/- from the complainant promising to repay
the same within one year. In order to repay the said loan,
the accused gave the complainant, a cheque for
Rs.2,00,000/- bearing No.960246 dated 10.06.2006,
drawn on State Bank of India, Harihara Branch.
Accordingly, after one year, the complainant presented the
said cheque for encashment, but the said cheque returned
with an endorsement 'accounts closed'. As such, the
complainant issued legal notice to accused on 08.09.2006
through ordinary post and RPAD which was served on the
accused. Inspite of receipt of said legal notice, the
accused failed to repay the cheque amount. Thus, the
accused has committed the offence punishable under
Section 138 of Negotiable Instruments Act, 1881
(hereinafter referred to as 'N.I.Act' for short).
4. After taking cognizance, the Trial Court
has registered the case in C.C.No.214/2007 and summons
was issued. In receipt of summons, the accused appeared
before the Trial Court and enlarged on bail. The substance
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of plea was recorded and accused pleaded not guilty and
claims to be tried.
5. To prove the case of the complainant,
complainant examined himself as PW.1 and 5 documents
were got marked as Ex.P1 to P5. On closure of
complainant's side evidence, the accused has denied the
evidence of PW.1 and adduced her evidence as DW.1 by
way of affidavit and 7 documents were got marked as
Exs.D1 to D7 and another two witnesses are examined as
DWs.2 and 3. On hearing both side, the Trial Court has
convicted the accused for commission of offence
punishable under Section 138 of N.I.Act and sentenced to
undergo simple imprisonment for a period of three months
and also awarded compensation of Rs.2,75,000/- to the
complainant. Being aggrieved by this impugned judgment
of conviction and order of sentence, the accused has
preferred an appeal in Criminal Appeal No.56/2015 before
the 1st Addl. District and Sessions Judge, Chitradurga. The
Appellate Court has allowed the appeal and set aside the
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judgment of conviction and order of sentence passed by
the Trial Court and acquitted the accused. Being
aggrieved by the judgment of acquittal passed by the
Appellate Court, the complainant has preferred the present
appeal.
6. Learned counsel for the appellant submits
that the impugned judgment of acquittal passed by the
Appellate Court is opposed to law, facts and probabilities
of the case. The judgment of acquittal by the Appellate
Court is illegal, invalid, erroneous and contrary to law and
evidence on record. He further submits that the Appellate
Court has committed serious error in acquitting the
accused/respondent. The Trial Court has ignored the
provisions of Section 139 of N.I.Act and the Trial Court has
committed an error in receiving the evidence of DW.1 by
way of affidavit which is not permissible under law. On all
these grounds, he sought to allow this appeal.
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7. As against this, learned counsel for
accused/respondent submits that the Trial Court has
properly appreciated the evidence on record in accordance
with law and facts and that there are no grounds to
interfere with the judgment of acquittal passed by the
Appellate Court.
8. Having heard the arguments and on
perusal of entire material placed before this Court, the
following points would arise for my consideration:
i. Whether the appellant-complainant has
made out a ground to remand the case to
the Trial Court?
ii. What order?
9. My answer for the above points is as under:
Point No.1: in the affirmative;
Point No.2: as per final order
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Regarding Point No.1:
10. I have carefully examined the materials placed
before this Court.
The complainant has filed complaint under Section
138 of N.I.Act for dishonour of cheque for Rs.2,00,000/- in
favour of complainant. To prove the case of complainant,
the complainant himself examined as PW.1 and 5
documents were got marked as Exs.P1 to P5. The accused
has adduced her evidence by way of affidavit as DW.1.
which is not permissible under law.
11. Relying on the evidence of DW.1 and other
reasons assigned by the Appellate Court, the accused was
acquitted. Since the accused has adduced her evidence
by way of affidavit, the same cannot be looked into. In
this regard, it is relevant to 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 AIR 2010 SC 1402, wherein at paragraphs
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31 and 32 of the judgment, the Hon'ble Supreme Court
has observed 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
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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."
12. Further, the Co-ordinate Bench of this Court, in
the case of SMT. BHAGYA v. V. SAVITHRAMMA
reported in 2013(1) KCCR 834, relying upon the
judgment of the Hon'ble Supreme Court in the case of
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MANDVI CO-OPERATIVE BANK LIMITED, 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 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."
13. Keeping in mind the Section 145 of
N.I.Act, the aforesaid decision of the Hon'ble Apex Court
and also by considering the facts and circumstances of the
case, it is just and proper to remand the matter to the
Trial Court for disposal afresh with a direction to provide
an opportunity to the accused to adduce her evidence in
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accordance with law. Hence, I answer point No.1 in the
affirmative.
Regarding point No.2:
14. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
1. Appeal allowed;
2. Judgment of acquittal dated 01.07.2016
passed in Criminal Appeal No.56/2015 by
the Court of the 1st Addl. District and
Sessions Judge, Chitradurga is set aisde.
Consequently, the judgment of conviction
and order of sentence dated 24.08.201
passed in C.C.No.214/2007 by the Court of
Additional Civil Judge and JMFC,
Hosadurga, is also set aside;
3. The matter is remitted to the Trial Court
with a direction to provide an opportunity
to the accused to adduce his evidence in
accordance with law;
4. The Trial Court is also directed to provide
an opportunity to both the parties to
adduce their additional evidence, if any;
5. Both the parties are directed to appear
before the Trial Court on 17.01.2024
without seeking further notice from the
Trial Court.
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6. The Trial Court is directed to dispose of the
case as expeditiously as possible and in any
event, within six months from the date of
appearance of the parties as the matter is
of the year 2007.
7. Registry to send the copy of this judgment
along with Trial Court records to the Trial
Court without any delay.
Sd/-
JUDGE
SSD
