Karnataka High Court
Sri.K.A.Ravi Chengappa vs Sri.B.A.Eliyanna on 7 December, 2023
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CRL.A No. 712 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 712 OF 2013 (A)
BETWEEN:
SRI K.A RAVI CHENGAPPA,
S/O SRI AIYAMMA,
AGED ABOUT 49 YEARS,
MADENADU VILLAGE & POST,
MADIKERI TALUK,
KODAGU DISTRICT - 571 201.
...APPELLANT
(BY SRI K S BHEEMAIAH, ADVOCATE)
AND:
SRI B.A ELIYANNA,
S/O. AITHAPPA,
AGED ABOUT 64 YEARS,
R/AT PALOOR VILLAGE AND POST,
MADIKERI TALUK,
KODAGU DISTRICT- 571 201.
Digitally signed ...RESPONDENT
by T S
NAGARATHNA (BY SRI NAGARAJA R C, ADVOCATE)
Location: High
Court of
Karnataka
THIS CRL.A IS FILED U/S.378(4) CR.P.C TO SET ASIDE
THE JUDGMENT DATED 17.06.2013 PASSED BY THE I ADDL.
DIST. & S.J., KODAGU, MADIKERI IN CRL.A.NO.20/2007 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I.ACT AND CONFIRM THE JUDGMENT DATED
06.01.2007 PASSED BY THE ADDL. C.J. (JR. DN.) AND J.M.F.C.,
MADIKERI IN C.C.NO.1759/2003.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 712 of 2013
JUDGMENT
Heard the learned counsel for both the sides.
The appellant/complainant has preferred this appeal
against the judgment of acquittal passed by the in
Crl.A.No.20/2007 dated 17-6-2013 by the learned I Additional
District and Sessions Judge, Kodagu, Madikere, for the offence
punishable under Section 138 of N.I. Act and to confirm the
judgment dated 06.01.2007 passed by the Additional Civil
Judge (Jr.Dn) and JMFC, Madikeri in CC No.1759/2003.
2. For the sake of convenience, the parties in this appeal
are referred to as per their status and rank before the Trial
Court.
3. Brief facts of the complainant are that, the accused
had borrowed a sum of Rs.1,20,000/- on 20-01-2003 from the
complainant for his legal necessity and issued post dated
crossed cheque bearing No.808114 dated 22.5.2003 for the
said sum drawn on Corporation Bank, Bettageri Branch.
Accordingly, the complainant has presented the said cheque for
encashment on 22.5.2003 through Karnataka Contractors
Sahakara Bank Niyamitha, Madikeri. It was returned unpaid
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with an endorsement dated 3.6.2003 as 'No account' and his
Banker returned the cheque with endorsement to the
complainant on 10-6-2003. Thereafter, the complainant issued
legal notice on 17-6-2003 by calling upon the accused to repay
the cheque amount and it was served on him on 21-6-2003.
Even after receipt of the said notice, the accused has failed to
repay the cheuqe amount. Hence, complainant lodged the
complaint under Section 138 of N.I. Act.
4. After taking cognizance, the trial Court has registered
a case in CC No.1759/2003 against the accused for commission
of offence punishable under Section 138 of Negotiable
Instruments Act, 1881 and summons were issued. In response
to summons, the accused appeared before the Court, he was
released on bail and substantive plea was recorded, accused
pleaded not guilty and claimed to be tried.
5. To prove the case, complainant got examined himself
as PW1 and marked eleven documents as Exhibits P1 to P11.
On closure of complainant's side evidence, statement under
Section 313 of Code of Criminal Procedure was recorded.
Accused has totally denied the evidence of PW1 and adduced
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the evidence of DW.1 and also examined three witnesses as
DWs.2 to 4 by way of affidavit instead of examination- in- chief
and five documents were marked as Exhibits D1 to D5.
6. On hearing arguments on both sides, the trial Court
has convicted the accused for the commission of the offence
punishable under Section 138 of NI Act and sentenced him to
undergo simple imprisonment for a period of six months and
also he shall pay a fine of Rs.5,000/- and in default to pay the
fine amount, he shall undergo further simple imprisonment for
a period of two months. The trial Court has also awarded the
compensation of Rs.2,40,000/- to the complainant.
7. Being aggrieved by the said judgment of conviction
passed by the trial Court, the accused/respondent herein had
preferred an appeal before the Appellate Court in
Crl.A.No.20/2002 which came to be allowed by the Appellate
Court on 17-6-2013 and accused was acquitted of the offences
by setting aside the judgment passed by the trial Court.
8. Being aggrieved by the said judgment of acquittal
passed by the Appellate Court, the complainant/appellant has
preferred this appeal.
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9. The learned counsel appearing on behalf of the
appellant/complainant has submitted his arguments that the
Appellate Court has not properly appreciated the evidence on
record in accordance with law and facts. The Appellate Court
has ignored the provision of Section 139 of N.I. Act. Further, he
submitted that the trial Court has received the evidence of
DW.1 to DW.4 by way of affidavit which is not permissible
under the provisions of Section 145 of Negotiable Instruments
Act, 1881. On these grounds, the learned counsel sought to
remand the case to the trial Court for disposal in accordance
with law.
10. As against this, learned counsel appearing for the
respondent-accused, has submitted his arguments that the
Appellate 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.
On all these grounds, sought for dismissal of the appeal.
11. Having heard the arguments by both the sides and
on perusal of material on record, the following points would
arise for my consideration in this appeal:
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1. Whether the appellant/complainant has made out a
grounds to interfere with the impugned judgment of
acquittal passed by the Appellate Court in
Crl.A.No.20/2007 on the file of the I Additional District
and Sessions Judge, Kodagu, Madikeri?
2. What order?
12. My answer for the above points are as under:
Point No.1: in the affirmative
Point No.2: as per final order
Re. Point No.1:
13. The appellant/complainant has filed a complaint
against the accused as to the dishonour of the cheque which
was issued for Rs.1,20,000/-. To prove the case of the
complainant, the complainant examined himself as PW1 and 11
documents were marked as Exs.P1 to P11 and on closure of
complainant's evidence, accused had adduced his evidence as
DW1 by way of an affidavit. DW.2 to DW.4 have also adduced
their evidence by way of affidavits which is not permissible
under the provisions of Section 145 of N.I. Act.
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14. In this regard, 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
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."
15. 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
(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.".
16. 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 complied the
mandatory provisions of Section 145 of the said Act, and the
evidence of the accused/DW1 and DW.2 to 4 by way of
affidavits is not permissible under the provisions of Section
145 of NI Act. Since the accused had not adduced his evidence
in accordance with law, the same cannot be looked into by this
Court. Hence, it is just and proper to remit the matter to the
trial Court with a direction to provide opportunity to the
accused to adduce his evidence in accordance with law.
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Accordingly, complainant has made out a grounds to interfere
with the impugned judgment of acquittal and also to remand
the case to the trial Court. Hence, I answer Point No.1 in the
affirmative.
Re. Point No.2:
17. For the aforesaid reasons and discussions, I proceed
to pass the following:
ORDER
(i) Appeal allowed;
(ii) Judgment of acquittal dated 17-6-2013 passed in
Crl.A.No.20/2007 by the I Additional District and Sessions
Judge, Kodagu, Madikeri is hereby set aside. The judgment of
conviction dated 6-01-2007 in CC No. 1759/2003 passed by the
Additional Civil Judge (Jr.Dn) and JMFC, Madikeri is also set
aside.
(iii) Matter is remitted back to the trial Court with a
direction to provide opportunity to the accused to adduce his
oral evidence in accordance with law;
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(iv) The trial Court is also directed to provide an
opportunity to both the parties to adduce their additional
evidence, if any;
(v) Both the parties are directed to appear before the trial
Court on 17th January, 2024 without seeking any further
notice from the trial Court in this regard;
(vi) The trial Court is directed to dispose of the case
within six months from 17th January, 2024, as the matter is of
the year 2003;
(vii) Registry to send the copy of this judgment along
with the trial Court record to the trial Court without any delay.
Sd/-
JUDGE
tsn*
