Karnataka High Court
M R Manohar vs Chandrakanth Shrishail Patil on 7 December, 2023
-1-
NC: 2023:KHC:44354
CRL.A No. 1672 of 2017
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. 1672 OF 2017 (A)
BETWEEN:
M R MANOHAR,
S/O LATE RAMANNA,
AGED ABOUT 77 YEARS,
NO.2123, 3RD MAIN,
8TH CROSS, RPC LAYOUT,
BANGALORE-560 040.
...APPELLANT
(BY SRI S M KULKARNI, ADVOCATE)
AND:
CHANDRAKANTH SHRISHAIL PATIL,
S/O. MALLIKARJUN SHRISHAIL PATIL,
AGED ABOUT 58 YEARS,
R/AT GADAGI GALLI, NEAR VITHOBA
Digitally MANDIR, NEHRU NAGAR,
signed by
SANDHYA S AT & POST SANKESHWAR,
Location: High BELGAVI DISTRICT-591 313
Court of
Karnataka
...RESPONDENT
(BY SRI ANANTHA NARAYANA B N, ADVOCATE)
THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 27.07.2017 PASSED
BY THE XXI ADDL.C.M.M., BANGALORE IN C.C.NO.16343/2011
- 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:44354
CRL.A No. 1672 of 2017
JUDGMENT
Both the counsel present.
Appellant's counsel filed a memo along with the copy of
the affidavit in lieu of evidence filed by the respondent
/accused and copy of the Daily status report dated 15-2-2017
in CC No.16343/2011 on the file of XXI Additional CMM at
Bengaluru showing that accused i.e. respondent filed his
affidavit in lieu of his Examination in Chief as DW1 and the
same is placed on record.
2. The appellant/complainant has preferred this appeal
against the judgment of acquittal dated 27-07-2017 passed in
CC No.16343/2011 by the learned XXI Additional CMM,
Bengaluru.
3. For the sake of convenience, the parties in this appeal
are referred to as per their status and rank before the Trial
Court.
4. Brief facts of the complaint are that, the
complainant approached the accused to get loan of
Rs.25,00,000/- from a private financier in the year 2008 as he
wanted to construct his house. At that time, accused demanded
NC: 2023:KHC:44354
10% of the loan amount as upfront fees/commission for getting
loan from a private financier. Accordingly, the complainant
paid a sum of Rs.2,50,000/- in cash to the accused. The
accused has informed that he will pay the said amount to the
financier for making arrangement to obtain loan of
Rs.25,00,000/-. A sum of Rs.2,50,000/- was paid by the
complainant to the accused on 8-6-2008. Though the
complainant paid money to the accused, accused failed to
arrange loan as promised by him. Hence, the complainant
requested the accused to return the money. However, the
accused was not available. After number of unsuccessful
attempts to get the accused, the complainant was finally able
to meet the accused at his house at Sankeshwar on
23-09-2009. The accused promised that he will return the
money to the complainant within a month by selling his land at
Sankeshwar. However, he did not keep up his promise. The
attempt of the complainant to reach the accused was proved
futile as his family members did not disclose his whereabouts.
The complainant visited the native of the accused number of
times on account of which he had to spend more than
Rs.45,000/- towards traveling and lodging expenses. Due to
NC: 2023:KHC:44354
the persistent efforts of the complainant, the accused issued
cheque for Rs.2,50,000/- on 23.9.2010 drawn on ICICI Bank
Ltd., Banashankari III Stage, Bangalore, towards repayment of
the money given by the complainant to the accused. The
complainant presented the cheque through his banker
Karnataka Bank Limited, Vijayanagar Branch, Bangalore, and
the cheque was dishonored as per the Banker's memo dated
5.10.2010 as 'Account closed.". The complainant informed the
same to the accused over phone and personally. Thereafter,
the complainant got issued legal notice to the accused
intimating the fact of dishonour and calling upon the accused to
pay the cheque amount on 3-11-2010 through RPAD and COP.
The notice sent through RPAD was returned as 'Not claimed'
on 15.11.2010 and notice sent through COP was duly served on
the accused and accused has failed to pay the cheque amount
inspite of demand. Thus, the accused has committed an offence
punishable under Section 138 of NI Act.
5. After taking cognizance, case was registered in CC
No.16343/2011 and summon was issued to the accused. In
response to the summons, accused appeared before the trial
NC: 2023:KHC:44354
Court through his counsel and is enlarged on bail. Plea was
recorded, accused pleaded not guilty and claimed to be tried.
6. To prove his case, complainant got himself examined
as PW1 and marked five documents as Exhibits P1 to P5. The
complainant also examined two witnesses as PWs 2 and 3. 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 PWs 1 to 3 and
adduced his evidence as DW1 and got marked three documents
as Exhibits D1 to D3. The handwriting expert was examined as
CW1 and got marked Ex.C1.
7. On hearing arguments on both sides, the trial Court
acquitted the accused. Being aggrieved by the impugned
judgment of acquittal, the complainant/appellant has preferred
this appeal.
8. Learned counsel appearing on behalf of the
appellant/complainant has submitted his argument that the
trial Court has not properly appreciated the evidence on record
in accordance with law. The trial Court has committed an error
in receiving the evidence of DW1 by way of an affidavit, which
NC: 2023:KHC:44354
is not permissible under law. On all these grounds he sought
for remand of the matter to the trial Court for disposal in
accordance with law.
9. As against this, learned counsel appearing for the
respondent-accused has submitted his argument that the trial
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, he sought for dismissal of the appeal.
10. Having heard the arguments on both sides and on
perusal of material on record, the following points would arise
for my consideration in this appeal:
1. Whether the appellant/complainant has made out
a ground to remand the matter to the trial Court for
fresh disposal in accordance with law?
2. What order?
11. My answer for the above points are as under:
Point No.1: in the affirmative.
Point No.2: as per final order.
NC: 2023:KHC:44354
Re. Point No.1:
12. I have carefully examined the material placed before
this Court. The complainant/appellant filed a complaint under
Section 138 of NI Act for dishonour of cheque. To prove his
case, the complainant examined three witnesses as PW.1 to
PW.3 and five documents were marked as Exs.P1 to P5 and on
closure of complainant's evidence, the accused has adduced
his evidence as DW.1 by way of an affidavit. The copy of the
affidavit is also produced before this Court which is not
permissible under law and is contrary to the provisions of
Section 145 of Negotiable Instruments Act. In this regard, I
rely on the decision of the Hon'ble Supreme Court in the case
of MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH B.
THAKORE reported in AIR 2010 SC 1402, 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
NC: 2023:KHC:44354
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 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
NC: 2023:KHC:44354
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."
13. 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
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
- 10 -
NC: 2023:KHC:44354
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.".
14. 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 accused DW1, along with the other
evidence, the trial Court has acquitted the accused. 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. Accordingly, complainant has
made out a ground 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.
- 11 -
NC: 2023:KHC:44354
Re. Point No.2:
15. For the aforesaid reasons and discussions, I proceed
to pass the following:
ORDER
(i) Appeal allowed;
(ii) Judgment of acquittal dated 27-07-2017
passed in CC No.16343/2011 by the XXI Additional
CMM Bengaluru, is set aside.
(iii) Matter is remitted to the trial Court with a
direction to provide opportunity to the accused to
adduce his oral evidence in accordance with law;
(iv) The trial Court is also directed to provide
an opportunity to both the parties to adduce their
evidence, if any;
(v). Both the parties are directed to appear
before the trial Court on 4th January 2024 without
seeking any further notice from the trial Court in this
regard;
- 12 -
NC: 2023:KHC:44354
(vi) The trial Court is directed to dispose of the
case within six months from 4th January 2024 as
the matter is of the year 2010;
(vii) Registry to send the copy of this judgment
along with the trial Court records to the trial Court
without any delay.
Sd/-
JUDGE
tsn*
