Karnataka High Court
Smt. Gowaramma vs Sri Gangaiah on 6 December, 2023
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NC: 2023:KHC:44142
CRL.A No. 1177 of 2013
C/W CRL.A No. 1178 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. 1177 OF 2013
C/W
CRIMINAL APPEAL NO. 1178 OF 2013
IN CRL.A NO.1177/2013
BETWEEN:
SMT. GOWARAMMA,
W/O SIDDAMAHIMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.111 & 123,
VINAYAKA LAYOUT,
ULLALA, BANGALORE - 560 016.
...APPELLANT
(BY SRI. MALLIKARJUN C.BASAREDDY, ADVOCATE [ABSENT])
AND:
Digitally
signed by SRI. GANGAIAH,
SANDHYA S
S/O HONNAPPA,
Location:
High Court of AGED ABOUT 31 YEARS,
Karnataka R/AT NO.16, 1ST CROSS,
2ND MAIN ROAD,
BINNAGANGAHALLI,
BANGALORE - 560 016.
...RESPONDENT
(VIDE ORDER DATED:18.12.2015, SERVICE OF NOTICE TO
RESPONDENT IS HELD SUFFICIENT)
THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 22.10.2013 PASSED BY THE
XIII A.C.M.M., BANGALORE IN C.C.NO.58/2009 - ACQUITTING
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CRL.A No. 1177 of 2013
C/W CRL.A No. 1178 of 2013
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I.ACT.
IN CRL.A NO.1178/2013
BETWEEN:
SMT. GOWARAMMA,
W/O SIDDAMAHIMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.111 & 123,
VINAYAKA LAYOUT,
ULLALA, BANGALORE - 560 016.
...APPELLANT
(BY SRI. MALLIKARJUN C.BASAREDDY, ADVOCATE(ABSENT))
AND:
SRI. GANGAIAH,
S/O HONNAPPA,
AGED ABOUT 31 YEARS,
R/AT NO.16, 1ST CROSS,
2ND MAIN ROAD,
BINNAGANGAHALLI,
BANGALORE - 560 016.
...RESPONDENT
(VIDE ORDER DATED 07.01.2016, NOTICE TO RESPONDENT
IS HELD SUFFICIENT)
THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 22.10.2013 PASSED BY THE
XIII A.C.M.M., BANGALORE IN C.C.NO.59/2009 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I.ACT.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1177 of 2013
C/W CRL.A No. 1178 of 2013
JUDGMENT
The police have not submitted the report regarding
execution of NBW. NBW issued against the
respondent/accused is recalled.
Both appellant's counsel and the respondent/accused
are absent.
The trial Court has received the evidence of accused
by way of affidavit, which is not permissible under law.
The appellant/complainant has preferred this appeal
against the judgment of acquittal passed by XIII Addl.
Chief Metropolitan Magistrate, Bangalore in
C.C.No.58/2009 dated 22.10.2013.
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 are that:
The complainant is the owner of property bearing
Site Nos.111 and 123 Ullala, Vinayaka Layout, Bangalore.
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Accused had received an amount of Rs.22,30,000/-
regarding agreement for construction of the building. From
the date of agreement dated 17.08.2006 till 10.07.2008
accused did not complete the construction work. Hence,
on 11.07.2008 the complainant and her husband enquired
about the poor quality in the construction and also delay in
construction. The accused agreed to complete the pending
work and towards the guarantee of the said agreement
had handed over two cheques bearing Nos.275135 for
Rs.1,00,000/- and 275134 for Rs.1,00,000/- dated
11.07.2007 drawn on Corporation Bank, Shivajinagar
Branch, Bangalore. The complainant and her husband
waited till 30.07.2008 but the accused did not keep up his
promise and did not comply the agreement dated
11.07.2008. But on 22.07.2008 accused along with
goonda elements had come to the house of the
complainant and demanded to return the cheques and also
took away the construction materials. Thereafter,
complainant presented the cheque bearing No.275135 in
Janatha Co-Operative Bank Ltd. W.C.Road Branch,
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Bangalore for encashment. The said cheque was
dishonoured with an endorsement as 'stop payment' on
07.08.2008. Thereafter, complainant got issued legal
notice to the accused on 12.08.2008 through RPAD and
UCP. The notice sent through RPAD was returned with an
endorsement as 'refused and returned to sender'. Notice
sent through UCP was duly served to the accused. Inspite
of service of notice, accused neither replied nor repaid the
cheque amount within stipulated time. Accordingly,
accused had committed the offence punishable under
Section 138 of N.I. Act.
4. After taking cognizance against the accused, a
case was registered in C.C.No.58/2009 and 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 case of the complainant, the
complainant got herself examined as PW.1 and marked six
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documents as Exs.P1 to P6. Thereafter, statement of
accused under Section 313 of Cr.P.C. was recorded.
Accused had denied the evidence of PW.1-Gowramma and
adduced his evidence by way of affidavit as DW.1 and
marked six documents as Exs.D1 to D6. On hearing the
arguments, the trial Court acquitted the accused.
6. Being aggrieved by the impugned judgment of
acquittal, the complainant/appellant has preferred this
appeal.
7. Appellant's counsel and the respondent remain
absent.
8. This Court has examined the impugned
judgment and other materials placed before this Court.
The accused has adduced his evidence by way of affidavit,
which is not permissible under law. Therefore, this Court
has taken up this matter for judgment.
9. To prove the defence set up by the accused,
accused-Gangaiah, S/o Honnappa has adduced his
NC: 2023:KHC:44142
evidence as DW.1 by way of affidavit, which is not
permissible under provisions of Section 145 of N.I. Act. In
this regard, I relied on the judgment of Hon'ble Supreme
Court in the case of M/S. MANDVI CO-OPERATIVE BANK
LIMITED v. NIMESH B.THAKORE reported in AIR 2010 SC
1402.
10. In view of the aforesaid decision, the trial Court
ought not to have accepted the evidence of accused by
way of affidavit. Hence, it is just and proper to remand
the matter to the trial Court for disposal in accordance
with law by providing an opportunity to the accused to
adduce his oral evidence in accordance with law. Hence, I
proceed to pass the following:
ORDER
1. The appeal is allowed;
2. The impugned judgment of acquittal dated
22.10.2013 passed in C.C.No.58/2009 by the
XIII Addl. Chief Metropolitan Magistrate,
Bangalore is hereby set aside;
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3. 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;
4. The complainant to permitted to adduce her
additional evidence, if any, before the trial
Court;
5. The trial Court is directed to secure both the
parties and after appearance of both the parties,
shall proceed with the matter in accordance with
law;
6. Registry is directed to send a copy of this
judgment along with trial Court records to the
concerned trial Court.
The police have not submitted the report regarding
execution of NBW. NBW issued against the
respondent/accused is recalled.
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Both appellant's counsel and the respondent/accused
are absent.
The trial Court has received the evidence of accused
by way of affidavit, which is not permissible under law.
The appellant/complainant has preferred this appeal
against the judgment of acquittal passed by XIII Addl.
Chief Metropolitan Magistrate, Bangalore in
C.C.No.59/2009 dated 22.10.2013.
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 are that:
The complainant is the owner of property bearing
Site Nos.111 and 123 Ullala, Vinayaka Layout, Bangalore.
Accused had received an amount of Rs.22,30,000/-
regarding agreement for construction of the building. From
the date of agreement dated 17.08.2006 till 10.07.2008
accused did not complete the construction work. Hence,
on 11.07.2008 the complainant and her husband enquired
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about the poor quality in the construction and also delay in
construction. The accused agreed to complete the pending
work and towards the guarantee of the said agreement
had handed over two cheques bearing Nos.275135 for
Rs.1,00,000/- and 275134 for Rs.1,00,000/- dated
11.07.2007 drawn on Corporation Bank, Shivajinagar
Branch, Bangalore. The complainant and her husband
waited till 30.07.2008 but the accused did not keep up his
promise and did not comply the agreement dated
11.07.2008. But on 22.07.2008 accused along with
goonda elements had come to the house of the
complainant and demanded to return the cheques and also
took away the construction materials. Thereafter,
complainant presented the cheque bearing No.275134 in
Janatha Co-Operative Bank Ltd. W.C.Road Branch,
Bangalore for encashment. The said cheque was
dishonoured with an endorsement as 'stop payment' on
07.08.2008. Thereafter, complainant got issued legal
notice to the accused on 12.08.2008 through RPAD and
UCP. The notice sent through RPAD was returned with an
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NC: 2023:KHC:44142
endorsement as 'refused and returned to sender'. Notice
sent through UCP was duly served to the accused. Inspite
of service of notice, accused neither replied nor repaid the
cheque amount within stipulated time. Accordingly,
accused had committed the offence punishable under
Section 138 of N.I. Act.
4. After taking cognizance against the accused, a
case was registered in C.C.No.59/2009 and 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 case of the complainant, the
complainant got herself examined as PW.1 and marked
eight documents as Exs.P1 to P8. Thereafter, statement of
accused under Section 313 of Cr.P.C. was recorded.
Accused had denied the evidence of PW.1-Gowramma and
adduced his evidence by way of affidavit as DW.1 and
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marked six documents as Exs.D1 to D6. On hearing the
arguments, the trial Court acquitted the accused.
6. Being aggrieved by the impugned judgment of
acquittal, the complainant/appellant has preferred this
appeal.
7. Appellant's counsel and the respondent remain
absent.
8. This Court has examined the impugned
judgment and other materials placed before this Court.
The accused adduced his evidence by way of affidavit,
which is not permissible under law. Therefore, this Court
has taken up this matter for judgment.
9. To prove the defence set up by the accused,
accused-Gangaiah, S/o Honnappa has adduced his
evidence as DW.1 by way of affidavit, which is not
permissible under provisions of Section 145 of N.I. Act. In
this regard, I relied on the judgment of Hon'ble Supreme
Court in the case of M/S. MANDVI CO-OPERATIVE BANK
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LIMITED v. NIMESH B.THAKORE reported in AIR 2010 SC
1402.
10. In view of the aforesaid decision, the trial Court
ought not to have accepted the evidence of accused by
way of affidavit. Hence, it is just and proper to remand
the matter to the trial Court for disposal in accordance
with law by providing an opportunity to the accused to
adduce his oral evidence in accordance with law. Hence, I
proceed to pass the following:
ORDER
1. The appeal is allowed;
2. The impugned judgment of acquittal dated
22.10.2013 passed in C.C.No.59/2009 by the
XIII Addl. Chief Metropolitan Magistrate,
Bangalore is hereby set aside;
3. 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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4. The complainant to permitted to adduce her
additional evidence, if any, before the trial
Court;
5. The trial Court is directed to secure both the
parties and after appearance of both the parties,
shall proceed with the matter in accordance with
law;
6. Registry is directed to send a copy of this
judgment along with trial Court records to the
concerned trial Court.
Sd/-
JUDGE
PGG
CT:SNN
