Karnataka High Court
Mr. Nagaraju S vs Mr. Eshwar K Murthy on 4 December, 2023
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NC: 2023:KHC:43642
CRL.A No. 720 of 2017
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. 720 OF 2017
BETWEEN:
MR. NAGARAJU S.,
S/O LATE R.SHIVANNA,
AGED ABOUT 49 YEARS,
R/AT NO.23, 2ND CROSS,
3RD MAIN, 3RD FLOOR,
CHENNAMMANAKERE ACHHUKATTU,
BEHIND TELEPHONE EXCHANGE,
BSK, BENGALURU-85.
...APPELLANT
(BY SRI. B.C.RAJANNA, ADVOCATE [ABSENT])
AND:
MR. ESHWAR K.MURTHY,
AGED ABOUT 36 YEARS,
S/O SRI. K.S. MURTHY,
Digitally
signed by R/AT NO.65/7, 1ST FLOOR,
SANDHYA S 36TH MAIN, 4TH CROSS,
Location: DOLLAR SCHEME,
High Court of BTM LAYOUT 1ST STAGE,
Karnataka
BENGALURU-68.
...RESPONDENT
(RESPONDENT SERVED & UNREPRESENTED)
THIS CRL.A. FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 13.03.2017 PASSED
BY THE XXII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BANGALORE CITY, IN C.C.NO.11154/2016 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT.
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CRL.A No. 720 of 2017
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Learned counsel for the appellant is absent.
Respondent remain unrepresented. Learned counsel for
the appellant has not furnished the correct address of the
respondent.
2. On examination of records, it is found that the
trial Court has received the evidence of accused by way of
affidavit, which is not permissible under law.
3. The rank of the parties in this appeal are
referred in the same rank as referred by the Trial court.
4. Brief facts of the complaint are that the accused
had issued a cheque bearing No.966152 dated 16.12.2015
for a sum of Rs.43,00,000/- drawn on Allahabad Bank
Bangalore for discharge of his debt. When the said cheque
was presented for encashment, the same was returned
with a shara 'stop payment'. In response to the issuance
of legal notice to pay the cheque amount, accused did not
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pay the cheque amount. Accordingly, the accused has
committed an offence punishable under Section 138 of N.I.
Act.
5. After taking cognizance, a case was registered
in C.C.No.11154/2016. In pursuance to the summons,
accused/respondent appeared before the trial Court and
was enlarged on bail. Substance of accusation was
recorded. Accused pleaded not guilty and claimed to be
tried.
6. To prove the case of the complainant,
complainant himself examined as PW.1 and got marked 20
documents as Exs.P1 to P20. On closure of complainant's
side evidence, statement of accused under Section 313 of
Cr.P.C. was recorded. Accused had totally denied the
evidence of PW.1 and adduced his evidence as DW.1 by
way of affidavit and got marked five documents as Exs.D1
to D5. On hearing the arguments, the trial Court
acquitted the accused. Being aggrieved by the impugned
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judgment of acquittal, the complainant/appellant has
preferred this appeal.
7. Both appellant's counsel and the respondent
remain absent. Considering the facts and circumstances of
the case, as the accused has adduced his evidence by way
of affidavit, which is not permissible under law, arguments
on both side is taken as nil.
8. To prove the case of complainant, the
complainant got himself examined as PW.1 and marked 20
documents as Exs.P1 to P20. On closure of complainant's
side evidence, Eshwar K.Murthy accused has adduced his
evidence by way of affidavit and then the case was posted
for cross-examination of DW.1. On 22.02.2017, the
accused counsel sought time to cross examine this DW.1.
But the trial Court rejected the said request without
assigning any reasons and cross-examination of DW.1 was
taken as nil. The trial Court has violated the provision of
Section 145 of N.I. Act and received the evidence of
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accused by way of affidavit, which is not permissible under
law. In this regard, I have gone through the decision of
the Hon'ble Supreme Court in the case of M/S MANDVI
CO-OPERATIVE BANK LTD. VS. NIMESH B.THAKORE
reported in 2010 (3) SCC 83.
9. Since, the trial Court has received the evidence
of accused/respondent by way of affidavit, it is just and
proper to remand the matter to the trial Court for fresh
disposal by providing an opportunity to the accused to
adduce his oral evidence in accordance with law. Hence, I
proceed to pass the following:
ORDER
i. The appeal is allowed;
ii. The impugned judgment of acquittal dated
13.03.2017 passed in C.C.No.11154/2016 by
the XXII Addl. Chief Metropolitan Magistrate,
Bangalore City is hereby set aside;
iii. The case is remitted to the trial Court with a
direction to the trial Court to provide an
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opportunity to the accused/respondent to
adduce his oral evidence in accordance with
law;
iv. The trial Court is directed to secure the
parties and after appearance of the parties
and shall proceed with the matter in
accordance with law;
v. The trial Court is also directed to provide an
opportunity to the complainant to adduce his
additional evidence, if any;
vi. Registry is directed to send a copy of this
judgment along with trial Court records to the
concerned trial Court;
vii. The trial Court is directed to dispose of the
matter as early as possible as the matter is of
the year 2016.
Sd/-
JUDGE
PGG
