Karnataka High Court

Sri Abdul Hameed vs Sri Mohammad Asif on 8 December, 2023

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                                                       NC: 2023:KHC:44662
                                                    CRL.A No. 564 of 2014




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 8TH DAY OF DECEMBER, 2023

                                        BEFORE
                        THE HON'BLE MR JUSTICE G BASAVARAJA
                         CRIMINAL APPEAL NO. 564 OF 2014 (A)
                BETWEEN:

                SRI ABDUL HAMEED,
                S/O ABDUL RAHIMAN,
                AGED ABOUT 47 YEARS,
                R/AT BOLAR,
                MANGALORE-575 001.
                                                             ...APPELLANT
                (BY SRI RANJITH K S, ADVOCATE)

                AND:

                SRI MOHAMMAD ASIF,
                S/O HASAN BAVA,
                AGED ABOUT 40 YEARS,
                R/AT NAZ MANZIL, NOORANI,
                YATHI KHANA, KUMPALA BYPASS,
                KUMPALA, MANGALORE.
Digitally
signed by       OFFICE AT SHOP NO.104,
SANDHYA S       M.M.K SHOP, CENTRAL MARKET,
Location:       MANGALORE - 575 001.
High Court of                                              ...RESPONDENT
Karnataka
                (RESPONDENT SERVED)

                     THIS CRL.A. IS FILED U/S. 378(4) CR.P.C BY THE ADV.,
                FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT
                MAY BE PLEASED TO SET ASIDE THE ORDER DATED 1.4.14
                PASSED BY THE JMFC -V COURT, MANGALORE IN
                C.C.NO.902/12 - 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:
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                                                NC: 2023:KHC:44662
                                             CRL.A No. 564 of 2014




                           JUDGMENT

The appellant/complainant has preferred this appeal

against the judgment of acquittal passed by the JMFC V

Court, Mangalore, DK in CC No.902/2012 dated

01.4.2014 acquitting the respondent/accused for the

offence punishable under Section 138 of N.I.Act.

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 complaint are that,

respondent/accused is a friend of complainant and to meet

his urgent financial necessity, accused had availed a hand

loan of Rs.2,50,000/- from the appellant and agreed to

return the said amount within one week. After some time

when the appellant approached respondent to repay the

said amount to discharge his liability, respondent made a

part payment of Rs.1,00,000/- by issuing a cheque

bearing No.008522 dated 21-3-2010 drawn on State Bank

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of Mysore, Mangalore Branch and promised that if cheque

is presented for encashment it will be honoured. Thus, the

appellant submitted the said cheque for encashment

through his banker Karnataka Bank, Bolar Branch,

Mangalore, but for the surprise of the appellant, the said

cheque was dishonoured by the drawee bank for the

reason 'insufficient fund'. Said fact was intimated to the

appellant by his banker through their memo dated

16-4-2010. Thereafter, the appellant issued a demand

notice dated 10-5-2010 through RPAD to the residence

and work place of the respondent/accused and on

12-5-2010 said notice was received by the respondent in

his residence, but even after the lapse of 15 days,

respondent neither repaid the cheque amount nor issued

any reply to the said notice. Hence, the appellant has filed

a complaint under Section 138 of NI Act.

4. After taking cognizance, the trial Court has

registered a case in CC No.902/2012 against the accused

for commission of offence punishable under Section 138 of

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Negotiable Instruments Act, 1881 and summons were

issued. In response to summons, the accused appeared

before the Court, he was enlarged on bail and

substantive plea was recorded, accused pleaded not guilty

and claimed to be tried.

5. To prove the guilt of the accused, complainant

examined himself as PW1 and marked four documents as

Exhibits P1 to P4. 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, but he has not chosen to lead any

defence evidence on his behalf.

6. In the impugned judgment, it is observed that the

accused has not appeared for submitting arguments and

hence, the trial Court has heard the arguments of

complainant and arguments for accused is taken as nil

and passed the impugned judgment of acquittal.

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7. Being aggrieved by the said judgment of acquittal

passed by the trial Court, the complainant/appellant has

preferred this appeal.

8. The learned counsel appearing on behalf of the

appellant/complainant has submitted his arguments that

the order of acquittal passed by the trial Court is opposed

to law, facts and probabilities of the case. The learned

trial Judge solely erred in noticing that the accused has not

denied the evidence of the complainant and during the

pendency of the complaint, accused had made the part

payment to the complainant and this itself shows that

respondent owes a sum of Rs.1,00,000/- to the appellant

herein. The appellant/complainant has clearly stated in his

evidence that on 16-4-2010 his Banker has returned the

cheque with bankers memo and the complainant has

issued notice on 10-5-2010 within 30 days from the date

of issuance of memo by the banker. Accordingly, the

complainant/appellant has complied the provisions of

Section 138(b) of Negotiable Instruments Act. The

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accused has not cross-examined PW1. Though the

evidence of PW1 remains unchallenged, the trial Court has

ignored the evidence of PW1 and come to the conclusion

that the complainant had not issued the legal notice within

30 days from the date of memo issued by the banker

which is contrary to the evidence placed by the

complainant. Accused has not adduced any defence

evidence. However, the trial Court has acquitted the

accused which is not sustainable in law. On all these

grounds, the learned counsel sought to allow this appeal.

9. Notice was duly served on the respondent, but

he is unrepresented. Hence, the arguments on behalf of

respondent/accused is taken as nil.

10. I have carefully examined the material placed

before this Court. The complainant has filed a complaint

under Section 138 of Negotiable Instruments Act, for

dishonour of cheque- Ex.P1 for Rs.1,00,000/- issued by

the accused in favour of the complainant on 21-3-2010.

The same was presented to the bank for encashment on

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22-3-2010 as per Ex.P2. In Ex.P3- notice, the complainant

has clearly stated that the cheque has been returned

dishonoured by the bank on the ground of 'funds

insufficient' as per cheque return Memo dated 16-4-2010

issued by the bank. The complainant has also stated the

same in his complaint as well as in sworn statement and

also in evidence. The evidence of PW.1 remains

unchallenged. However, the trial Court has assumed/

presumed that the complainant has received the memo

issued by the bank on 22.03.2010 though the accused had

not disputed the evidence of PW1 and also the contents of

Ex.P3 and the complaint. Apart from this the trial Court

has not properly questioned the accused under Section

313 of Cr.P.C., when the PW1 has specifically stated on

oath before the Court that he has received the

endorsement from the bank on 16-4-2010. The Trial Court

ought to have questioned in this regard while recording

the statement under Section 313 of Cr.P.C. The trial Court

has not put any question in the statement under Section

313 of Cr.P.C. in this regard. The question No.4 framed

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by the trial Court in the statement under Section 313 of

Cr.P.C., is vague and the same does not disclose the date

of return of the cheque by the bank on 16-4-2010. The

evidence placed by the complainant reveals that the

complainant has complied all the provisions of Section 138

of NI Act.

11. A perusal of the ordersheet dated 27-8-2013

reveals that on 27-8-2013, the complainant has adduced

his evidence as PW1 by way of affidavit and on the same

day four documents were marked as Exs.P1 to P4. The

ordersheet dated 27-8-2013 reads as under:

"Case called out. Accused absent. EP filed allowed. Complainant present and filed an affidavit by way of chief- examination and examined as PW1, got marked Exs.P1 to P4 and P1(a). Counsel for accused absent. No prayer for cross. Hence, cross of PW1 taken as nil further evidence closed. For accused statement under Section 313 of Cr.P.C. by 25-9-2014."

12. The order sheet dated 19-10-2013 reveals that

the accused has paid Rs.4,000/- to the complainant and

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then the case was posted for statement under Section 313

of Cr.P.C. on 27-10-2013. On 27-10-2013, the case was

not called. However on 28-10-2013, case was called. On

that day also accused absent. But Rs.3,000/- was paid by

the accused counsel to the complainant and then case was

posted to the statement under Section 313 of Cr.P.C. on

13-11-2013. Thereafter, the accused remained absent and

NBW was issued against the accused. That on 20-2-2014,

the accused appeared before the court and on that day,

statement under Section 313 of Cr.P.C. was recorded and

case was posted for defence evidence and thereafter, the

accused remained absent and NBW was issued. That on

28-2-2014 accused appeared before the Court and NBW

was recalled with penalty of Rs.300/-. Thereafter, the

accused remained absent. NBW was issued, but the same

was not executed and arguments was also not advanced

on behalf of the accused and in the absence of the

accused, the trial Court has acquitted the accused on

01-04-2014.

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13. The trial Court has recorded the evidence of PW1

on 27-8-2013, in which the trial Court has recorded that

accused counsel remained absent. The ordersheet dated

27-8-2013 also reveals that on the date of recording the

deposition of PW.1, the accused absent. Exemption

application was filed and the same was allowed. The trial

Court has recorded the evidence of PW1 in the absence of

accused and also accused counsel which is not permissible

under the provisions of Section 273 of Code of Criminal

Procedure, 1973. The trial Court has ignored the

provisions of Section 273 of Cr.P.C., and recorded the

deposition of PW.1. Accordingly, the trial Court has not

conducted the fair trail and violated the provisions of

Article 21 of the Constitution of India. Considering the

facts and circumstances of the case it is just and proper

to provide an opportunity to the accused to cross examine

PW1. Accordingly, the complainant/ appellant has made

out a grounds to interfere in the impugned judgment of

acquittal. Hence, I answer Point No.1 in the affirmative.

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Re. Point No.2:

14. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

(i) Appeal is allowed;

(ii) Judgment of acquittal passed by JMFC V Court,

Mangalore dated 1-04-2014 in CC No.902/2012 is set

aside.

(iii) Matter is remitted back to the trial Court with a

direction to provide an opportunity to the accused to

cross- examine PW1.

(iv) The trial Court is also directed to provide an

opportunity to the complainant to adduce additional

evidence, if any. After recording the evidence of PW1 in

accordance with law, the trial Court is directed to record

the statement under Section 313 of Cr.P.C., in accordance

with law. Thereafter, provide opportunity to the accused to