Sri Rajesh vs Sri Mallesh
2023 Latest Caselaw 9238 Kant

Karnataka High Court

Sri Rajesh vs Sri Mallesh on 5 December, 2023

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                                                          NC: 2023:KHC:43887
                                                       CRL.A No. 727 of 2014




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 5TH DAY OF DECEMBER, 2023

                                            BEFORE
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                              CRIMINAL APPEAL NO. 727 OF 2014
                   BETWEEN:

                   SRI. RAJESH,
                   S/O. MUNIYAPPA,
                   AGED ABOUT 38 YEARS,
                   R/AT PICHAGUNTRAHALLI VILLAGE,
                   MASTHI HOBLI, MALUR TALUK,
                   KOLAR DISTRICT - 563 101.
                                                                 ...APPELLANT
                   (BY SRI. SHANKAR REDDY C., ADVOCATE)

                   AND:

                   SRI. MALLESH,
                   S/O. GOVINDAPPA,
                   AGED ABOUT 39 YEARS,
                   R/AT PICHAGUNTRAHALLI VILLAGE,
                   MASTHI HOBLI, MALUR TALUK,
Digitally signed
                   KOLAR DISTRICT - 563 101.
by SANDHYA S                                                   ...RESPONDENT
Location: High     (BY SMT. NEERAJA KARANTH, ADVOCATE)
Court of
Karnataka
                        THIS CRL.A. IS FILED U/S 378 (3) & (4) CR.P.C PRAYING
                   TO CALL FOR RECORDS IN C.C. NO. 332/2011 FROM THE FILE
                   OF THE HON'BLE COURT OF THE SECOND ADDL. CIVIL JUDGE
                   AND JMFC, AT MALUR, PERUSE THE SAME, HEAR THE
                   APPELLANT AND ALLOW THE ABOVE APPEAL BY SETTING
                   ASIDE THE IMPUGNED JUDGMENT DATED 28.6.2014 IN
                   C.C.NO. 332/2011 ON THE FILE OF THE HON'BLE COURT OF
                   THE SECOND ADDL. CIVIL JUDGE & JMFC, MALUR AND PUNISH
                   THE RESPONDENT / ACCUSED HEREIN BY GRANTING AN
                   ORDER OF CONVICTION.
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                                               NC: 2023:KHC:43887
                                            CRL.A No. 727 of 2014




     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 II Addl.

Civil Judge and JMFC, Malur in C.C.No.332/2011 dated

28.06.2014.

2. The rank of the parties in this appeal are

referred in the same rank as referred by the Trial court.

3. Brief facts of the complaint is that:

The complainant and accused are friends from THE

past several years. Out of the friendship, accused

approached the complainant to provide him financial

assistance of Rs.1,90,000/- for the purpose of purchasing

the cattle to start dairy business and promised the

complainant to repay the same within two months. On the

assurance of the accused, the complainant had given a

hand loan of Rs.1,90,000/- in cash to the accused in the

last week of May, 2011. After lapse of two months,

complainant demanded the accused to repay the hand

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loan amount. Accused instead of paying the loan amount

issued a cheque bearing No.875890 dated 27.07.2011 for

the loan amount of Rs.1,90,000/- in favour of the

complainant drawn on Canara Bank, Masthi Branch, Malur

Taluk. When the said cheque was dishounored for the

reason 'funds insufficient', banker had issued an

endorsement on 27.07.2011. Complainant informed the

accused regarding dishonor of the cheque and demanded

the loan amount. But the accused had given evasive

reply. Then the complainant issued a legal notice to the

accused through RPAD demanding to repay the cheque

amount. Same was served on the accused on 04.08.2011.

After receiving the said notice, accused had given vague

reply to the complainant and did not pay the cheque

amount. Hence, the complainant lodged a complaint

against the accused for the commission of offence

punishable under Section 138 of N.I. Act.

4. The trial Court has taken cognizance against the

accused for the commission of the alleged offence and a

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case was registered in C.C.No.332/2011 for the

commission of offence punishable under Section 138 of

N.I. Act. Summons was issued to the accused. In

response to the summons, accused appeared before the

trial Court and was enlarged on bail. Substance of plea

was recorded. Accused pleaded not guilty and claimed to

be tried.

5. To prove the guilt of the accused, complainant

got himself examined as PW.1 and marked six documents

as Exs.P1 to P6. On closure of complainant's side

evidence, statement of accused under Section 313 of

Cr.P.C. was recorded. Accused had denied the evidence of

PW.1 and adduce his evidence as DW.1 and another

witness was examined on his behalf as DW.2 and marked

14 documents as Exs.D1 to D14. On hearing the

arguments on both sides, the trial court acquitted the

accused for the commission of offence punishable under

Section 138 of N.I. Act. Being aggrieved by the same, the

complainant has preferred the present appeal.

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6. Learned counsel for the appellant/complainant

has submitted his arguments that the trial Court was not

justified in dismissing the complainant's case and find in

fault with the case made out by the complainant which

was not warranted in law. The fact of the accused having

not signed the cheque in presence of the appellant is of no

consequences at all as long as the accused does not deny

his signature and does not deny that cheque belongs to

him and the initial presumption available under the

Evidence Act ought to have been raised in favour of the

complainant. But the trial Court had made much of the

evidence as if to find fault with the case of the

complainant. The trial Court has ignored the provisions of

Section 139 of N.I. Act. The trial Court has not appreciated

the evidence on record in accordance with law and facts

and has committed an error in receiving the evidence of

DWs.1 and 2 by way of affidavit, which is not permissible

under law. Apart from this, the complainant has filed

I.A.No.2/2022 under Section 391 of Cr.P.C. to produce

additional documents by way of additional evidence, which

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is supported by an affidavit. The proposed additional

documents are very much necessary to adjudicate the

matter in dispute. On these grounds, he sought for allow

this application and remand the matter to the trial Court

for disposal in accordance with law.

7. Learned counsel for the respondent/accused

has submitted her arguments that the trial Court has

properly appreciated the evidence on record in accordance

with law and facts and there are no grounds to interfere

with the impugned judgment of acquittal. The proposed

additional documents are not required for adjudication of

the matter. On all these grounds, she sought for dismissal

of the appeal.

8. Having heard the arguments on both sides and

perused the records, following points would arise for my

consideration:

1. Whether the appellant/complainant has made out any grounds to remand the matter to the trial Court for disposal in accordance with law?

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2. Whether I.A.No.2/2022 filed under Section 391 of Cr.P.C. by the appellant/complainant deserves to be allowed?

3. What order?

9. My answer to the above points are as under:

           Point No.1:    In the affirmative;
           Point No.2:    In the affirmative;
           Point No.3:    As per final order.

Regarding Point No.1:

10. I have carefully examined the materials placed

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

complainant got himself examined as PW.1 and marked six

documents as Exs.P1 to P6. On closure of complainant's

side evidence, accused adduced his evidence as DW.1 and

another witness was examined on his behalf as DW.2 and

go marked 14 documents as Exs.D1 to D14. DW.1-

Mallesh, S/o Govindappa and another witness DW.2-

Murthy, S/o Govindappa have adduced their evidence by

way of affidavit instead of examination-in-chief, which is

not permissible under law and also same is contrary to the

provisions of Section 145 of N.I. Act, 1981. In this regard

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I relied on the judgment of M/S. MANDVI CO-OPERATIVE

BANK LIMITED v. NIMESH B.THAKORE reported in AIR

2010 SC 1402, wherein, paragraphs 31 and 32, read 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 145(1)......", it was

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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. Since the accused has adduced his evidence by

way of affidavit, the same is contrary to the provisions of

Section 145 of N.I. Act and also decision of Hon'ble

Supreme Court in the case of M/s Mandvi cited supra.

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Hence, it is just and proper to remand the matter to the

trial Court by providing an opportunity to the

adduced/respondent to adduce his evidence in accordance

with law. Hence, I answer Point No.1 in the affirmative.

Regarding Point No.2:

12. With regard to I.A.No.2/2022 filed under

Section 391 of Cr.P.C. by the appellant/complainant is

concerned, which is supported with an affidavit of

Sri.Rajesh, he has stated that the trial Court has dismissed

the complaint filed by the complainant/appellant. Learned

counsel for the complainant had engaged the services of

present advocate to file an appeal and he was informed

that there is a need to produce additional documents in

this appeal and instructed him to apply for certified copies

and make available the same to be filed in this appeal.

Accordingly, he has obtained the proposed documents

through Right To Information Act, which are very much

necessary to adjudicate the matter in dispute.

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13. On careful examination of the materials placed

before this Court, it appears that the proposed additional

documents are required to adjudicate the matter in

dispute. Accordingly, the appellant/complainant has made

out a ground to allow this application. Hence, I answer

Point No.2 in the affirmative.

Regarding Point No.3:

14. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

1. The appeal is allowed;

2. The impugned judgment of acquittal dated 28.06.2014 passed in C.C.No.332/2011 by the II Addl. Civil Judge & JMFC at Malur is hereby set aside;

3. The application filed under Section 391 of Cr.P.C. by the complainant is allowed;

4. The case is remitted to the trial Court with a direction to provide an opportunity to the accused to adduce his evidence in accordance with law;

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5. The trial Court is also directed to provide an opportunity to the 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 seeking any further notice from the trial Court;

7. The trial Court is directed to dispose of the case in accordance with law within a period of six months from the date of appearance of the parties as the matter is of the year 2011;

8. Registry is directed to send a copy of this judgment along with copies of the documents which are filed along with I.A.No.2/2022 and the trial Court records to the concerned trial Court without causing any delay.

Sd/-

JUDGE PGG CT:SNN