Karnataka High Court

V G Shivashankar vs N A Balaji on 6 December, 2023

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                                                            NC: 2023:KHC:44149
                                                         CRL.A No. 465 of 2013




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 6TH DAY OF DECEMBER, 2023

                                             BEFORE
                            THE HON'BLE MR JUSTICE G BASAVARAJA
                               CRIMINAL APPEAL NO. 465 OF 2013
                   BETWEEN:

                   V G SHIVASHANKAR,
                   S/O LATE V D GANGAPPA,
                   AGED ABOUT 68 YEARS,
                   R/O NO.1, 8TH BLOCK,
                   S B M COLONY, SRIRAMPUR, MYSORE.
                                                                  ...APPELLANT
                   (BY SRI. NATARAJU T, ADVOCATE (ABSENT) )

                   AND:

                   N A BALAJI,
                   S/O N C ASHWANTH NARAYAN SHETTY,
                   AGED ABOUT 41 YEARS,
                   R/O NO.1023, KALAMMA TEMPLE RAOD
Digitally signed   NEAR BUS STAND, KOLAR.
by SANDHYA S
                                                                ...RESPONDENT
Location: High
Court of           (BY SRI. G.C. HANUMAIAH, ADVOCATE)
Karnataka
                          THIS CRL.A IS FILED U/S. 378(4) OF CR.P.C PRAYING TO
                   SET ASIDE THE ORDER DATED: 9.11.12 PASSED BY THE I
                   ADDL. I CIVIL JUDGE AND JMFC, MYSORE IN C.C.NO.58/11 -
                   ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                   P/U/S 138 OF N.I. ACT.
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                                                 NC: 2023:KHC:44149
                                              CRL.A No. 465 of 2013




      THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

The appellant/Complainant has preferred this appeal

against the judgment of acquittal passed by the I Additional

First Civil Judge and JMFC, Mysore dated 09.11.2012 in

CC.No.58/2011, (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 complainant is that the

accused and complainant are known to each other. The mother

of the accused purchased the house property situated at Kolar

from the complainant through a registered sale deed dated

31.03.2010. The accused borrowed the loan of Rs.5,00,000/-

out of the consideration amount received by the complainant.

To pay the said amount, the accused issued cheque bearing

No.869696 dated 25.04.2010 pertaining to his account at the

State Bank of India, Kolar. The accused assured that he will

pay the interest at the rate of 1% p.m. The accused not paid

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the amount and went on requesting the complainant to

post-pone the presentation of the cheque and at last the

accused told the complainant to present the cheque on

20.10.2010. Accordingly, the complainant presented the

cheque, which was returned dishonoured for "funds

insufficient". Thereafter, the complainant issued notice dated

04.11.2010 calling upon the accused to repay the cheque

amount covered under the cheque. Inspite of receipt of the

notice, the accused has not paid the amount. Hence, the

complainant has lodged the complaint under Section 138 of

Negotiable Instruments Act, 1881.

4. After taking cognizance the trial Court has

registered the case against the accused for the commission of

offence punishable under Section 138 of Negotiable

Instruments Act, 1881 in CC.No.58/2011.

5. Summons was issued to the accused in pursuance

of summons, accused appeared through the counsel and

substance of plea was recorded, accused pleaded not guilty and

claimed to be tried.

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6. To prove the guilt of the accused, complainant

himself examined as PW1, 08 documents were marked as Ex.P1

to Ex.P8. On closure of complainant's side evidence, the

statement of accused as provided under Section 313 of Cr.P.C

was recorded. Accused denied the evidence of PW1 and

adduced the evidence of DW1 and DW2 by way of affidavit and

04 documents were marked as Ex.D1 to Ex.D4.

7. On hearing the arguments the trial Court acquitted

the accused. Being aggrieved by this impugned judgment of

acquittal, appellant/complainant has preferred this appeal.

8. Respondent's counsel is present. Heard the

arguments of learned counsel for the respondent.

9. Appellant's counsel is absent.

10. To prove the guilt of the accused, the complainant

examined as PW1 and 8 documents were marked as Ex.P1 to

Ex.P8. On closure of complainant's side evidence, accused has

adduced the evidence of DW1 and DW2 by way of affidavit

which is not permissible under law, under the provisions of

Section 145 of the Negotiable Instruments Act, 1881. In this

regard, it is relevant to refer to the dictum of Hon'ble Supreme

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Court in the case of M/s. MANDVI CO-OPERATIVE BANK

LIMITED Vs. 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' 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

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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. 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:

"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

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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 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 DWs1 and 2 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. But the trial Court has

not expressed any opinion as to receiving the evidence of

accused by way of affidavit. The judgment passed by the trial

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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 is allowed:

2. Judgment of acquittal dated 09.11.2012 passed

by the I Additional First Civil Judge and JMFC,

Mysore in CC No.58/2011, is set aside;

3. Accused/respondent is directed to appear

before the trial Court on 08.01.2024 and the

trial Court is directed to issue Court notice to

the complainant and after securing the

complainant the trial Court is directed to

proceed with the case in accordance with law.

Complainant is also permitted to adduce any

additional evidence, if any;

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4. The matter is remitted back to the trial Court

with a direction to give an opportunity to both

parties to adduce their oral evidence, if any;

5. 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 2011;

6. Registry to send the copy of this judgment