Karnataka High Court
Sri.H.N.Bore Gowda vs Mr.Veerabadra Swamy on 5 December, 2023
-1-
NC: 2023:KHC:44065
CRL.A No. 716 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. 716 OF 2014
BETWEEN:
SRI.H.N.BORE GOWDA
S/O LATE NARASIMIAH
AGED ABOUT 45 YEARS,
MS. S.L.N. TRADERS,
NO.293, RAMAKRISHNA LAYOUT,
MALAGALA MAIN ROAD,
NAGARBAVI II STAGE,
BANGALORE-560 091
...APPELLANT
(BY SRI. K J GOPI ., ADVOCATE)
AND:
MR. VEERABADRA SWAMY
S/O SHIVARUDRAPPA
AGED ABOUT 35 YEARS,
VEERABADRASWAMY TRADERS,
Digitally signed
by SANDHYA S MAGADI ROAD, IJOOR,
Location: High RAMANAGARA - 571502.
Court of ...RESPONDENT
Karnataka
(BY SRI. B KESHAVAMURTHY., ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING THAT
TO SET ASIDE THE ORDER DATED:17.5.14 PASSED BY THE
XXII ADDL.CMM, BANGALORE CITY, IN C.C.NO.27387/2009 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2023:KHC:44065
CRL.A No. 716 of 2014
JUDGMENT
The appellant/complainant has preferred this
appeal against the judgment of acquittal dated 17.05.2014
passed in C.C.No.27387/2009 by XXII Addl. Chief
Metropolitan Magistrate, Bangalore City. (hereinafter
referred to as 'Trial Court' for short).
2. The brief facts of the complaint are that
the complainant and the accused are known to each other
for quite some time as both are dealers of cement and on
account of the acquaintance, the accused approached the
complainant seeking supply of cement on credit basis and
accordingly, the complainant had supplied cement worth of
Rs.9,65,000/- during the month of February 2008 and the
accused irrevocably assured and undertook to pay the said
amount within a month. But, the accused has failed to
keep up his promise for paying the amount, but on the
request of the complainant, he issued a cheque for a sum
of Rs.9,65,000/- dated 13.09.2008 drawn on Bank of
India, Bidadi Branch, bearing No.182452 and requested
NC: 2023:KHC:44065
the complainant to present the said cheque towards the
outstanding amount. Accordingly, the complainant
presented the said cheque for collection, but the same is
returned unpaid with an endorsement to that effect
'account closed' on 15.09.2008. Thereafter, the accused
with no other alternative caused a legal notice to the
accused through RPAD and COP dated 11.10.2008 to the
shop and residence of the accused and notice sent through
COP and RPAD is duly served at the address and on
service of notice, the accused has not paid the cheque
amount, but replied to the notice with an untenable
defence denying the transaction. Thus, the accused has
committed offence punishable under Section 138 of
Negotiable Instruments Act, 1881 (hereinafter referred to
as 'N.I.Act' for short).
3. The Trial Court took cognizance against
the accused for the commission of alleged offence and the
case was registered in C.C.No.27387/2009. In pursuance
of summons, the accused appeared before the Court and
NC: 2023:KHC:44065
enlarged on bail. The substance of plea was recorded and
the accused pleaded not guilty and case to be tried.
4. To prove the guilt of the accused,
complainant examined himself as PW.1 and 8 documents
were got marked as Exs.P1 to P8. On closure of
complainant's side evidence, accused has adduced his oral
evidence as DW.1 and 10 documents were got marked as
Ex.D1 to D10. On hearing the arguments on both sides,
the Trial Court has acquitted the accused. Being
aggrieved by the judgment of acquittal, the
complainant/appellant has preferred this appeal.
5. The appellant's counsel remained absent.
6. The respondent's counsel submits that the
Trial Court has appreciated the evidence on record in
accordance with law and facts and there is no ground to
interfere with the impugned judgment of acquittal. On all
these grounds, he sought to dismiss the appeal.
NC: 2023:KHC:44065
7. On perusal of grounds urged in the
memorandum of appeal and also keeping in mind the
grounds narrated in the decision of Hon'ble Apex Court in
the case of MANDVI CO-OPERATIVE BANK LIMITED v.
NIMESH B. THAKORE reported in AIR 2010 SC 1402,
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?
8. My answer for the above points are as under:
Point No.1: in the affirmative;
Point No.2: as per final order
Regarding Point No.1:
9. The appellant/complainant has filed the
complaint under Section 138 of N.I.Act. To prove the guilt
of the accused, the appellant/complainant got examined
as PW.1 and eight documents were marked as Exs. P1 to
P8. On closure of complainant's side evidence, the
NC: 2023:KHC:44065
statement under Section 313 of Code of Criminal
Procedure was recorded. The accused has adduced his
evidence by way of affidavit and 10 documents were got
marked as Exs.D1 to D10. Adducing evidence by way of
affidavit by the accused 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 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
NC: 2023:KHC:44065
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
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
NC: 2023:KHC:44065
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. BHAGYA v. V. SAVITHRAMMA
reported in 2013(1) KCCR 834, relying upon the
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
NC: 2023:KHC:44065
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 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 DW.1 and
other materials, the Trial Court has 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
- 10 -
NC: 2023:KHC:44065
opinion, it is a fit case for remand to the Trial Court for
disposal afresh.
12. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
1. Appeal allowed;
2. Judgment of conviction dated 17.05.2014
passed in C.C.No.27387/2009 by the Court
of XXII Addl. Chief Metropolitan Magistrate,
Bangalore City, 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
evidence in accordance with law;
4. The Trial Court is also directed to provide
an opportunity to the complainant to
adduce his additional evidence, if any;
5. The Trial Court is directed to issue court
notice to the complainant/accused to
prosecute the case.
- 11 -
NC: 2023:KHC:44065
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 2009.
7. Registry to send the copy of this judgment
along with Trial Court records to the Trial
Court without any delay.
Sd/-
JUDGE
SSD
