Karnataka High Court
M/S Sree Gokulam Chits And Finance Co. ... vs Sri Nagesh B on 6 December, 2023
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CRL.A No. 223 of 2014
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. 223 OF 2014
BETWEEN:
M/S SREE GOKULAM CHITS AND
FINANCE CO. (P) LTD.
HAVING ITS REGISTERED
CORPORATE OFFICE AT:
"SREE GOKULAM TOWERS", NO.66,
ARCOT ROAD, KODAMBAKKAM,
CHENNAI - 600 024.
AND HAVING BRANCH OFFICE AT:
REAR BLOCK, 1ST FLOOR,
PUNJAB MANSION, NO.23,
EBRAHIM SAHIBSTREET,
SHIVAJI NAGAR, BANGALORE - 560 003,
REP. BY ITS GPA HOLDER: SRI SIDHRAJU.
...APPELLANT
(BY SRI. H.K.SINGH, ADVOCATE [ABSENT])
AND:
Digitally signed SRI. NAGESH B.,
by SANDHYA S
Location: High
NO.5, BALAJI LAYOUT,
Court of DODDA BANASAWADI,
Karnataka RAMAMURTHY NAGAR MAIN ROAD,
BANGALORE - 560 016.
RESPONDENT
(BY SRI. G.VEERENDRA BABU, ADVOCATE)
THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 08.04.2013 PASSED BY THE
ADDITIONAL SESSIONS JUDGE AND P.O., FTC.III, MAYO HALL
UNIT, BANGALORE IN CRL.A.NO.25113/2012 - ACQUITTING
THE RESPONDENT/ ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT AND CONFIRM THE ORDER
DATED 21.07.2012 PASSED BY THE XIV ADDL. CHIEF
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CRL.A No. 223 of 2014
METROPOLITAN MAGISTRATE, BANGALORE IN
C.C.NO.28551/2007.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant's counsel is absent. Respondent's counsel
is present.
2. On perusal of the impugned judgment, this
Court has noticed that the accused has adduced his
evidence by way of affidavit, which is not permissible
under law.
3. The appellant/complainant has preferred this
appeal against the impugned judgment of acquittal passed
by the Appellate Court in Crl.A.No.25113/2012 dated
08.04.2013 on the file of Addl. Sessions Judge and P.O,
FTC.III, Mayo Hall Unit, Bangalore.
4. The rank of the parties in this appeal are
referred in the same rank as referred by the trial Court.
5. Brief facts of the complaint are that:
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The complainant was running a chit and finance
business. The accused was a subscriber of chit group
No.G2H555 with ticket No.08 participated in the auction
and received the amount after deducting 25% of sale
value of Rs.5,00,000/- and then Rs.3,75,000/- after
executing the promissory note. The accused failed to pay
the installments to the complainant and became a
defaulter. Afterwards, the accused issued a cheque
bearing No.483958 dated 15.01.2007 for Rs.3,81,331/-
drawn on ICICI Bank Ltd., Chamarajpet Branch,
Bangalore. When the said cheque was presented for
encashment through UTI Bank Ltd., Cox-Town, Bangalore,
same was dishonoured for the reason 'funds insufficient &
signature differ'. Then the complainant got issued a legal
notice dated 02.02.2007 calling upon the accused to pay
the cheque amount. Though accused received the notice,
did not reply to the same and also did not pay the cheque
amount. Thus, the accused committed an offence
punishable under Section 138 of N.I. Act.
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6. After taking cognizance against the accused for
the commission of offence punishable under Section 138 of
N.I.Act, the trial Court registered a case in
C.C.No.28551/2007. Summons was issued to the accused
and in response to the summons, accused appeared before
the trial Court and was enlarged on bail.
7. To prove the guilt of the accused, complainant
got himself examined as PW.1 and marked 10 documents
as Exs.P1 to P10. On closure of complainant's side
evidence, statement of accused under Section 313 of
Cr.P.C. was recorded. Accused totally denied the evidence
of PW.1 and adduced his evidence by way of affidavit as
DW.1 and marked four documents as Exs.D1 to D4. On
hearing the arguments, the trial Court convicted the
accused for the commission of offence punishable under
Section 138 of N.I. Act and sentenced him to pay fine of
Rs.4,00,000/- and in default to undergo simple
imprisonment for one year. Being aggrieved by the same,
the accused preferred an appeal before the Addl. Sessions
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Judge and P.O., FTC.III, Mayo Hall Unit, Bangalore in
Crl.A.No.25113/2012. Vide order dated 08.04.2013, the
Appellate Court allowed the said appeal filed by the
accused and acquitted the accused for the offence
punishable under Section 138 of N.I. Act. Being aggrieved
by the judgment of acquittal passed by the Appellate
Court, the complainant has preferred the present appeal.
8. The appellant's counsel remain absent.
Respondent's counsel is present. I have heard the
arguments of learned counsel for the respondent/accused
and perused the materials on records.
9. On perusal of the records, this Court has
noticed that, to prove the guilt of the accused, one Sri.Saji
M.C. was examined as PW.1 and marked 10 documents as
Exs.P1 to P10 on his behalf. 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 by way of
affidavit, which is not permissible under the provisions of
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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. 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.
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 proceed to pass the following:
ORDER
1. The appeal is allowed;
2. The impugned judgment of acquittal passed by
the Additional Sessions Judge and P.O, FTC.III,
Mayo Hall Unit, Bangalore in
Crl.A.No.25113/2012 dated 08.04.2013 is set
aside and the judgment of conviction and order
of sentence dated 21.07.2012 passed in
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C.C.No.28551/2007 by XIV Addl. Chief
Metropolitan Magistrate, Bangalore is also set
aside;
3. The case is remitted back to the trial Court with a
direction to provide an opportunity to the
accused/respondent to adduce evidence in
accordance with law;
4. The trial Court is also directed to issue Court
notice to the complainant to proceed with the
case;
5. The accused/respondent is directed to appear
before the trial Court on 04.01.2024 without
seeking any further notice from the trial Court;
6. Registry is directed to send a copy of this
judgment along with TCR and SCR to the
concerned Courts.
Sd/-
JUDGE
PGG
