Karnataka High Court

D N Manjunatha vs Sri Sathishkumar B A on 4 December, 2023

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                                                        NC: 2023:KHC:43590
                                                     CRL.A No. 134 of 2013




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 4TH DAY OF DECEMBER, 2023

                                          BEFORE
                         THE HON'BLE MR JUSTICE G BASAVARAJA
                            CRIMINAL APPEAL NO. 134 OF 2013
                BETWEEN:

                D.N. MANJUNATHA,
                SON OF SRI. C. NAGARAJ,
                AGED ABOUT 33 YEARS,
                RESIDING AT NO.132, 23RD MAIN,
                II STAGE, J.P. NAGAR, MYSORE.
                                                              ...APPELLANT
                (BY SRI. R. KRISHNA MURTHY, ADVOCATE)

                AND:

                SRI. SATHISHKUMAR B.A,
                SON OF SRI. ANANTHARAMU,
                AGED ABOUT 35 YEARS,
                RESIDING AT NO.274,
Digitally
signed by       20TH MAIN ROAD, 'D' BLOCK,
SANDHYA S
                2ND STAGE, J.P. NAGAR, MYSORE.
Location:
High Court of                                               ...RESPONDENT
Karnataka
                (BY SRI. H.M. MANJESH, ADVOCATE)

                       THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
                SET ASIDE THE ORDER DATED 20.10.2012 PASSED BY THE IV
                ADDL. I C.J. & J.M.F.C., MYSORE IN C.C.NO.972/2009 -
                ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                P/U/S 138 OF N.I.ACT.
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                                                 NC: 2023:KHC:43590
                                           CRL.A No. 134 of 2013




      THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

The complainant/appellant has preferred this appeal

against the judgment of acquittal passed by the IV Additional, I

Civil Judge And JMFC, Mysore, in CC.No.972/2009 dated

20.10.2012, (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 accused

and the complainant are good friends. The accused approached

the complainant in the month of November 2008 for a loan of

Rs.3,00,000/- for his legal necessities and improvement of

departmental stores agreeing to repay the same in short

period. Accused has issued two cheques bearing No.660189

dated 20.01.2009 and cheque No.660190 dated 29.01.2009 for

a sum of Rs.1,50,000/- each drawn on Vijaya Bank, Industrial

Suburb Branch, Mysore. When the complainant presented the

cheques for encashment through his banker Indian Overseas

Bank, J.P.Nagar Branch, Mysore, but to utter shock and

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surprise of the complainant, the cheques bounced with a shara

"Funds Insufficient" on 26.02.2009. The complainant got issued

legal notice on 07.03.2009 calling upon the accused to pay the

cheque amount within 15 days. Though the notice served on

the accused, he did not repay the loan amount. Hence, the

complainant lodged the complaint.

4. After taking cognizance, case was registered in

CC.No.972/2009 and summons were issued. In pursuance of

summons accused appeared before the trial Court and enlarged

on bail. The substance of plea was recorded. The accused

pleaded not guilty and claimed to be tried.

5. To prove the case of the complaint, complainant

himself examined as PW1 and 9 documents were marked as

Ex.P1 to Ex.P9. On closure of complainant side evidence

statement of the accused under Section 313 of Cr.P.C was

recorded. Accused has totally denied the evidence of PW1 and

adduced his evidence by way of affidavit as DW1 and 02

documents were marked as Ex.D1 and Ex.D2. On hearing the

arguments the trial Court has acquitted the accused. Being

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aggrieved by the impugned judgment of acquittal, the

complainant/appellant has preferred this appeal.

6. Learned counsel for the appellant has submitted his

arguments that the accused/respondent has issued 2 cheques

Ex.P1 and Ex.P2 for a sum of Rs.1,50,000/- each to discharge

his liability. The same were presented to the bank for

encashment on 22.02.2009 which returned with shara 'funds

insufficient' as per EX.P3 and Ex.P4 dated 26.02.2009. The

legal notice was issued on 07.03.2009 through RPAD and also

through certificate of posting. The legal notice issued through

RPAD is returned with shara 'door locked'. But with regard to

'certificate of posting', as per Section 27 of General Clauses

Act, there is presumption of service of notice to respondent

through certificate of posting. The complainant has lodged the

complaint under Section 200 of Cr.P.C on 18.04.2009.

Accordingly, the complainant has complied all the mandatory

provisions of Section 139 of the Negotiable Instruments Act,

1881 and he has discharged his burden as required under the

said Section of the Negotiable Instruments Act, 1881. Now, the

burden shifts on the accused to rebut the presumption under

Section 138 of the Negotiable Instruments Act, 1881. DW1 has

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clearly admitted in his evidence that the cheques in question

belongs to him and it bears his signature. But he has taken

defence that he has issued blank cheques to the father of the

complainant. There is no sufficient legal evidence to rebut the

presumption under Section 139 of the Negotiable Instruments

Act, 1881. The trial Court has not properly appreciated the

evidence on record in accordance with law and facts and also

the decisions of the Hon'ble Apex Court. To substantiate his

arguments, learned counsel relied on the following decisions:

M/s.Agency Real Margao Pvt. Limited vs.Subhash K.Parab

2015 Cri.L.J.2336 (Bombay High Court (Goa Bench)

T.P.Murugan vs.Posa Nandhi (2018)8 SCC 469

Kishan Rao vs.Shankargowda (2018)8 SCC 165

T.Vasanthkumar vs.Vijayakumari (2015)8 SCC 389

7. As against this, the 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. In the absence of evidence of DW1, there

are no grounds to interfere with the impugned judgment of

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acquittal. On all these grounds sought for dismissal of the

appeal.

8. Having heard the arguments and perusal of records,

the following points would arise for the consideration:

1) Whether the appellant/complainant has made out a

ground to interfere with impugned judgment of acquittal.

2) What order?

My answer to the above points are as under:

Point No.(1) : Affirmative,

Point No.(2) : As per final order.

Regarding Point No.1:

9. I have carefully examined the materials placed

before this Court. A perusal of materials placed before this

Court, makes it crystal clear that the complainant has proved

the essential ingredients of Section 138 of the Negotiable

Instruments Act, 1881, except the explanation of provisions of

Section 138 of the Act is legally recoverable debt. In this

regard, the trial Court has received the evidence of accused by

way of affidavit. It is settled principle of law that adducing of

evidence by way of affidavit is not permissible. Therefore, the

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evidence of DW1 cannot be looked into. This view of mine is

fortified by the decision of Hon'ble Supreme Court in the case

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:

"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'

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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."

10. 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:

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"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.".

11. 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 complied the

provisions of Section 145 of the said Act, and adducing

evidence by way of affidavit is not permissible in law. Relying

on the affidavit evidence, the trial Court has allowed the appeal

and acquitted the accused. Since the accused/respondent has

not adduced evidence in accordance with law, same cannot be

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looked into. The judgment passed by trial Court is not in

consonance with the judgment of the Hon'ble Apex Court and

also provisions of Section 145 of Negotiable Instruments Act,

1881. Accordingly, in my considered opinion, it is a fit case for

remand to the trial Court for disposal afresh. Accordingly, I

answer point No.1 in the affirmative.

Regarding Point No.2:

12. For the aforesaid reasons and discussions, I proceed

to pass the following:

ORDER

1. The appeal is allowed.

2. The judgment of acquittal passed by IV

Additional I Civil Judge and JMFC, Mysore in

CC.No.972/2009, dated 20.10.2012 is

set-aside.

3. The matter is remitted back to the trial Court

with a direction to provide an opportunity to

the accused to adduce his oral evidence in

accordance with law and also as per the

judgment of the Hon'ble Apex Court as