Karnataka High Court
B Vijayabhaskar Shetty Since Deceased ... vs H K Raghunath on 4 December, 2023
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CRL.A No. 1265 of 2011
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. 1265 OF 2011
BETWEEN:
B VIJAYABHASKAR SHETTY
SINCE DECEASED BY LRS.
Digitally
signed by 1. VRINDA SHETTY
SANDHYA S
Location:
W/O B.V SHETTY, AGED 62 YEARS,
High Court
of Karnataka 2. RAHUL SHETTY Cause title amended
S/O B.V SHETTY, AGED 36 YEARS vide court order
dated.10.07.2023
3. GOKUL SHETTY
S/O B.V SHETTY, AGED 32 YEARS
ALL ARE AT NO.A-1, CASA LAVELLE-6,
LAVELLE ROAD, BANGALORE-560001
...APPELLANTS
(BY SRI. KRISHNA MOHAN REDDY C, ADV. FOR
SRI. S.SHAKER SHETTY AND
SRI. ANIL KUMAR SHETTY, ADVOCATES)
AND:
H K RAGHUNATH
S/O LATE M. KRISHNAPPA
AGED 53 YEARS,
HINNAKKI VILLAGE, ANEKAL TALUK
BANGALORE URBAN DISTRICT
...RESPONDENT
(BY SRI. GIRISH KODGI., ADVOCATE)
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CRL.A No. 1265 of 2011
THIS CRL.A. IS FILED U/S. 378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:20.09.11 PASSED IN
CRL.A.NO.25143/10 BY THE ADDL. S.J., AND P.O., FTC-III,
MAYO HALL UNIT, BANGALORE AND RESTORE THE JUDGMENT
AND ORDER DATED:12.10.10 PASSED BY THE XIV
ADDL.C.M.M., BANGALORE IN C.C.NO.30850/07 AND PUNISH
THE RESPONDENT WITH IMPRISONMENT AND WITH FINE OF
TWICE THE CHEQUE AMOUNT U/S 138 OF N.I ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant-Complainant has preferred this appeal to
set aside the judgment of acquittal dated 20.09.2011
passed in Crl.Appeal No.25143/2010 by the Court of
Additional Sessions Judge and P.O., FTC III, Mayo Hall
Unit, Bangalore (for brevity, hereinafter referred to as the
'Sessions Court') and restore the judgment and order
dated 12.10.2010 passed in C.C.No.30850/2007 by the
Court of XIV Addl. CMM, Bangalore. (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 Appellate Court.
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3. Brief facts of the case of complainant are that:
The complainant is doing Real Estate business and
also Financial Consultancy and Wealth Management
Services. The accused contacted complainant during the
month of January,2004 and convinced that he is having
good contact with the local people and he promised the
complainant that he could procure about 400 acres of land
in Anekal taluk. The complainant believed his words and
as per the terms of agreement, entered into memorandum
of understanding dated 03.02.2004. The complainant
paid a sum of Rs.10,00,000/- at the time of signing
memorandum of understanding. The complainant was
required to pay a sum of Rs.15,00,000/- per each acre of
land to the accused as per terms of memorandum of
understanding as consideration and it was payable to the
accused in installments depending upon the progress
made by him in procuring the lands as per terms of
agreement. The land identified by the accused for the
complainant was notified by Karnataka Housing Board.
The complainant negotiated with the competent authority
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and finally Karnataka Housing Board agreed to pay
Rs.34,00,000/- and also one housing plot measuring
30'x40' for each acre acquired by the Karnataka Housing
Board. It is further agreed that as per the MOU entered
into between the complainant and accused, the accused is
liable to pay the amount of Rs.3,00,000/- for each acre of
land contracted under the said MOU. Therefore, accused
is legally liable to pay an aggregate amount of
Rs.12,21,00,000/- which has been agreed by the accused
to pay to the complainant as and when the Karnataka
Housing Board released the compensation to the land
owners. Accordingly, on 10.05.2007, the complainant sent
a telegram asking the accused to pay a sum of
Rs.1,40,00,000/- as part payment out of
Rs.12,21,00,000/-. The accused issued cheque bearing
No.075005 for Rs.70,00,000/-drawn on Canara Bank,
Infantry Road Bangalore in favour of the complainant with
a covering letter dated 19.06.2007 towards part payment
by promising him that he has sufficient funds in his
account and the complainant can present the cheque for
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encashment. Believing the words of accused, the
complainant presented the cheque through his banker
Vijaya Bank, Mayo Hall Branch, Bangalore but the same
has returned with endorsement as 'funds insufficient. The
complainant got issued legal notice on 12.07.2007 both
through RPAD and UCP. The notice sent through RPAD
returned without being served on the accused. But the
notice sent through UCP was duly served on the accused.
In response, the accused neither paid the cheque amount
nor replied to the said legal notice. Therefore, the accused
has committed offence punishable under Section 138 of
Negotiable Instruments Act, 1881 (hereinafter referred to
as '138 of N.I.Act' for short).
4. After taking cognizance of the alleged offence,
the case was registered in C.C.No.30850/2007. In
pursuance of summons, the accused appeared before the
Trial Court and enlarged on bail. The substance of
accusation was recorded and the accused pleaded not
guilty and claimed to be tried.
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5. To prove the guilt of the accused, accused
himself got examined as PW.1 and got marked thirteen
documents as Exhibits P1 to P13. On closure of
complainant's side evidence, statement of accused under
Section 313 of the Code of Criminal Procedure was
recorded. Accused has totally denied the evidence of
prosecution witnesses and adduced defence evidence as
DWs. 1 to 3 and got marked twenty one documents as
Exhibits D1 to D21. Upon hearing on both sides, the Trial
Court has convicted the accused for the commission of
offence punishable under Section 138 of N.I.Act and
sentenced to pay fine amount of Rs.70,50,000/- and in
default to pay fine amount, to undergo simple
imprisonment for one year and out of fine amount, a sum
of Rs.70,25,000/- is ordered to paid to the complainant by
way of compensation under Section 357 of Cr.P.C. Being
aggrieved by this judgment of conviction and order of
sentence, the accused has preferred appeal before the
Additional Sessions Judge and P.O. FTC III, Mayo Hall Unit,
Bangalore in Crl.Appeal No.25143/2010 and the same
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came to be allowed by the appellate Court. The judgment
of conviction and order of sentence dated 12.10.2010
passed in C.C.No.30850/2007 by the XIV Addl. C.M.M.
Bangalore was set aside and the accused was acquitted.
Against the said order of acquittal, the complainant has
preferred the present appeal before this Court.
6. Sri Krishna Mohana Reddy C, learned counsel
appearing on behalf of learned counsel Sri. Shaker Shetty
for the appellant submits that the Sessions Court has
erred in acquitting the accused by giving a finding that the
respondent has failed to discharge the initial burden as the
cheque was not issued for the refund of debt and no
evidence was led in with regard to this and the Sessions
Court has failed to appreciate the evidence on record and
ought to have convicted the accused. On all these
grounds, he sought to allow the appeal.
7. There is no representation on behalf of
respondent. Hence, the arguments on behalf of
respondent is taken as nil.
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8. Having heard the learned counsel for the
appellant and on perusal of records, the following points
would arise for my consideration in this appeal:
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
Regarding Point No.1:
10. I have carefully examined the materials placed
before this Court. It is not in dispute that cheque
No.075005 belongs to the accused. It is also not in
dispute as to the signature Exhibit P3(a) signed by the
accused. The said cheque was presented for encashment
and the same was returned with an endorsement "funds
insufficient". Thereafter, the complainant caused legal
notice through his Advocate as per Exhibit P5 calling upon
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the accused to repay the cheque amount and the same
was duly served on the accused. Accused has neither
replied for the said notice nor paid the cheque amount.
Hence, the complainant has filed complaint against the
accused for commission of offence punishable under
Section 138 Negotiable Instruments Act, 1881 within
prescribed time. After recording sworn statement of the
accused, the Trial Court took cognizance of the alleged
commission of offence under Section 138 of Negotiable
Instruments Act, 1881. To prove the guilt of the accused,
the complainant got himself examined as PW.1 and
thirteen documents were marked as Exhibits P1 to P13.
On closure of complainants side evidence, the statement
under Section 313 of Code of Criminal Procedure was
recorded and the accused has totally denied the evidence
of complainant witnesses and adduced his defence. DW.1
has filed his affidavit in respect of examination-in-chief,
which is not permissible in law. As regards acceptance of
evidence in the form of affidavit, it is relevant to refer to
the dictum of Hon'ble Supreme Court in the case of
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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
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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 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. BHAGYA v. V. SAVITHRAMMA
reported in 2013(1) KCCR 834, relying upon the
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judgment of the Hon'ble Supreme Court in the case of
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.".
12. On examination of the aforesaid decisions along
with the provisions of Section 145 of Negotiable
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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 in law. Relying on the evidence of DWs.1 to 3
and other materials, 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 looked into. The impugned judgment passed by
the 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.
13. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
1. Appeal allowed;
2. Judgment of conviction dated 12.10.2010
passed in C.C.No.30850/2007 by the Court
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of XIV Addl. C.M.M., Bangalore, is set
aside;
3. Judgment of acquittal dated 20.09.2011
passed in Crl.Appeal No.25143/2010 by the
Court of the Additional Sessions Judge and
P.O., FTC III, Mayo Hall Unit, Bangalore, is
set aside;
4. The matter is remitted back to the Trial
Court with a direction to provide an
opportunity to the accused to adduce his
evidence in accordance with law;
5. The Trial Court is also directed to provide
an opportunity to complainant to adduce
his additional evidence, if any;
6. Both the parties are directed to appear
before the Trial Court on 21.12.2023
without waiting for notice from the Trial
Court in this regard;
7. The Trial Court is directed to dispose of the
case as expeditiously as possible and in any
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event, within six months from the date of
appearance of the parties, as the matter is
of the year 2007.
8. Registry to send the copy of this judgment
along with Trial Court records to the Trial
Court without any delay.
Sd/-
JUDGE
SSD
