Karnataka High Court

Smt S Geetha Prakash vs Smt S Indira on 8 December, 2023

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                                                         NC: 2023:KHC:44588
                                                      CRL.A No. 567 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. 567 OF 2014
                 BETWEEN:

                 SMT. S. GEETHA PRAKASH,
                 R/O NO. 1/2, 3RD FLOOR,
                 GANESHA TEMPLE STREET,
                 5TH CROSS, SUDHAMA NAGAR,
                 BENGALURU - 560 027.
                                                               ...APPELLANT
                 (BY SRI. JAYAPRAKASH Y.G, ADVOCATE (ABSENT) )

                 AND:

                 SMT. S. INDIRA,
                 W/O M.K. SREENIVASA,
                 NO. 85/1, I MAIN ROAD,
                 I FLOOR, SUDAMANAGAR,
Digitally        BENGALURU - 560 027.
signed by
USHA N S                                                     ...RESPONDENT
Location: High
Court of         (BY SRI. JOSE SABASTIANA, ADVOCATE)
Karnataka

                        THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
                 SET ASIDE THE JUDGMENT/ORDER DATED 4.6.2014 PASSED
                 BY THE XIX A.C.M.M., BANGALORE IN C.C.NO.30398/2009 -
                 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                 P/U/S 138 OF N.I.ACT.
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                                                 NC: 2023:KHC:44588
                                              CRL.A No. 567 of 2014




        THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The appellant/complainant has preferred this appeal

against the judgment of acquittal passed by the XIX Additional

Chief Metropolitan Magistrate, Bangalore City in

CC.No.30398/2009 dated 04.06.2014, (for short hereinafter

referred to as 'Trial Court').

2. The rank of the parties in this appeal are referred to

as per their status before the trial Court.

3. The brief facts of the complainant is that accused is

known to complainant and out of the acquaintance the accused

has approached the complainant for hand loan amount of

Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only) to

meet his financial demand. By considering the request of the

accused, the complainant had advanced the hand loan amount

of Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only).

The accused had promised to repay the loan amount within a

year. After repeated request and demand the accused in order

to repay the part of liability had issued a cheque bearing

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No.478148 dated 20.05.2009 for a sum of Rs.70,000/- (Rupees

Seventy Thousand only) and requested the complainant to

present the cheque for encashment. Accordingly, the

complainant presented the said cheque before her banker,

Bharath Co-operative Bank Ltd., Bangalore for encashment.

The said cheque was returned dishonoured with an

endorsement 'insufficient funds' on 26.08.2009 and the same

was communicated to the complainant on 28.08.2009, after

receipt of the endorsement the accused avoided to meet the

complainant. Hence, the complainant issued a legal notice on

10.09.2009 calling upon the accused to pay the cheque amount

through RPAD and COP. The notice issued through RPAD

returned unserved with a shara "Addressee not found", further

the notice issued under COP was duly served. Inspite of receipt

of legal notice, the accused neither chosen to make payment of

the cheque amount nor she has replied. Hence, the

complainant has lodged the complaint under Section 138 of the

Negotiable Instruments Act, 1881.

4. After recording the sworn statement of the

complainant, the trial Court has taken cognizance against the

accused for the alleged commission of offence under Section

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138 of the Negotiable Instruments Act, 1881 and the case was

registered in CC.No.30398/2009. Summons was issued to the

accused, in pursuance of summons, accused appeared before

the trial Court and enlarged on bail. Substance of accusation

was recorded, accused pleaded not guilty and claimed to be

tried.

5. To prove the case of the complainant one witness

were examined as PW1, 6 documents were marked as Ex.P1 to

Ex.P6. On closure of complainant's side evidence, statement

under Section 313 of Cr.P.C was recorded. Accused has denied

the incriminating evidence of PW1 and the accused has

adduced his evidence by way of affidavit and 09 documents

were marked as Ex.D1 to Ex.D9.

6. Learned counsel for the appellant is absent. Heard

the arguments of learned counsel for the respondent.

7. Having heard the arguments of learned counsel for

the respondent and perusal of records, the following points

would arise for the consideration:

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1) Whether the appellant/complainant has made out a

ground to interfere with the impugned judgment of

acquittal in accordance with law.

2) What order?

My answer to the above points are as under:

       Point No.(1) :     Affirmative,


       Point No.(2) :     As per final order.

8. I have carefully examined the materials placed

before this Court. The complainant Smt.S.Geetha Prakash has

filed a complaint under Section 138 of Negotiable Instruments

Act, 1881 for dishonour of cheque of Rs.70,000/- (Rupees

Seventy Thousand only) dated 20.05.2009. To prove her case,

the complainant examined herself as DW1, 6 documents were

marked as Ex.D1 to Ex.D6. On closure of complainant side

evidence the accused has adduced his evidence as DW1 by

way of affidavit which is not permissible under law. In this

regard I have 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

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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 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

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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."

9. Further, the Co-ordinate Bench of this Court, in the

case of SMT. H.BHAGYA Vs. SMT. R.SAVITHRAMMA

reported in 2013(1) KCCR 834, relying upon the judgment

of the Hon'ble Supreme Court in the case of M/s.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,

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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.".

10. A perusal of impugned judgment it is crystal clear

that relying on the evidence of DW1, the trial Court has

acquitted the accused. The evidence of DW1 cannot be looked

into as the same is received by way of affidavit which is

contrary to the provisions of Section 145 of the Negotiable

Instruments Act, 1881 and the above said decision of Hon'ble

Apex Court. Hence, it is just and proper to provide an

opportunity to the accused to lead her evidence in accordance

with law. Accordingly, appellant has made out a ground to

interfere with the impugned judgment. Hence, I answer point

No.1 in affirmative.

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Regarding Point No.2:

11. For the aforesaid reasons and discussion, I proceed

to pass the following:

ORDER

1. Appeal is allowed.

2. The judgment passed in CC.No.30398/2009

dated 04.06.2004 on the file of XIX

Additional Chief Metropolitan Magistrate,

Bangalore City, is set aside.

3. The case is remitted back to the trial Court

with a direction to provide an opportunity to

the accused to lead her evidence, in

accordance with law;