Mr.Chikkanna vs Sri A.N.Shivanna
2023 Latest Caselaw 7670 Kant

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                                                             NC: 2023:KHC:40818
                                                          CRL.A No. 249 of 2014




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 15TH DAY OF NOVEMBER, 2023

                                            BEFORE
                          THE HON'BLE MR JUSTICE G BASAVARAJA
                              CRIMINAL APPEAL NO.249 OF 2014
                   BETWEEN:
                   MR. CHIKKANNA, S/O LATE HANUMANTHAIAH,
                   AGED ABOUT 53 YEARS,
                   RESIDING AT SHETTYGOWDANADODDI,
                   BIDADI POST AND HOBLI, RAMANAGAR TALUK,
                   RAMANAGAR DISTRICT - 562 109.
                                                                    ...APPELLANT
                   (BY SRI. A.V. RAMAKRISHNA, ADVOCATE)
                   AND:
                   SRI. A.N.SHIVANNA,
                   S/O NANJUNDAPPA, MAJOR,
                   R/AT NANJUNDESHWARA NILAYA,
                   KETHAGANAHALLI ROAD, RAGHAVENDRA LAYOUT,
                   BIDADI POST AND HOBLI, RAMANAGAR TALUK,
                   RAMANAGAR DISTRICT - 562109.
                   AND ALSO AT SRI. SHIVANNA,
                   S/O. NANJUNDAPPA, HEAD MASTER,
                   HPS SCHOOL, URAGHALLI VILLAGE & POST,
Digitally signed
by SANDHYA S       BIDADI HOBLI, RAMANAGARAM TALUK
Location: High     AND DISTRICT - 562 109.
Court of
Karnataka                                                        ...RESPONDENT
                   (BY SRI. JAY KISHAN SHARMA, ADVOATE FOR
                       SRI. GOPAL SINGH, ADVOCATE)
                        THIS CRL.A. IS FILED U/S. 378(4) OF CR.P.C PRAYING TO
                   SET ASIDE THE ORDER DATED:3.2.14 PASSED BY THE ADDL.
                   CIVIL JUDGE AND JMFC, RAMANAGAR IN C.C.NO.81/10 -
                   ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                   P/U/A 138 OF N.I. ACT; I.A.NO.1/14 FOR SPECIAL LEAVE; AND
                   ETC.

                        THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                             NC: 2023:KHC:40818
                                          CRL.A No. 249 of 2014




                            JUDGMENT

The appellant/complainant has preferred this appeal

against the judgment of acquittal dated 03rd February, 2014

passed in CC No.81 of 2010 by the Additional Civil Judge and

JMFC, Ramanagar (for brevity, hereinafter referred to as the

"Trial Court").

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 case are that, the accused, in

order to purchase a house, approached the complainant during

the first week of October, 2008 and availed sum of Rs.4.00 lakh

as loan and agreed to repay the same within six months along

with interest. When the complainant demanded the accused to

repay the amount, the complainant issued cheque No.309106

dated 13th May, 2009 for sum of Rs.4.00 lakh. When the

complainant presented the same to his banker for encashment,

the same returned with an endorsement 'funds insufficient'.

Hence, the complainant caused legal notice dated 25th May,

2009 calling upon the accused to repay the cheque amount.

NC: 2023:KHC:40818 CRL.A No. 249 of 2014

Despite service of notice, the accused has neither repaid the

cheque amount nor replied to the Notice. Hence, the

complainant filed the complaint. The trial Court has taken

cognizance against the accused for commission of offence

punishable under Section 138 of Negotiable Instruments Act,

1881 and summons were issued. Pursuant to issuance of

summons, the accused appeared before the Court, pleaded not

guilty and claimed to be tried.

4. To prove the case, complainant got himself

examined as PW1 and marked seven documents as Exhibits P1

to P7. On closure of complainant's side evidence, statement

under Section 313 of Code of Criminal Procedure was recorded.

Accused has totally denied the complainant's evidence and

adduced his evidence as DW1 and got marked three documents

as Exhibits D1 to D3. Upon hearing arguments on both sides,

the trial Court passed judgment of acquittal. Being aggrieved

by the impugned judgment of acquittal, the present appeal is

preferred by the complainant/appellant.

5. Sri A.V. Ramakrishna, learned counsel appearing for

the appellant, submits that the trial Court has recorded the

NC: 2023:KHC:40818 CRL.A No. 249 of 2014

statement accused/respondent on the basis of affidavit instead

of examination-in-chief, which is not permissible under the

provisions of Section 145 of Negotiable Instruments Act, 1881.

To substantiate his arguments, the learned counsel relied upon

the decision 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 and a decision of this

Court in the case of SMT. H. BHAGYA v. SMT. R. SAVITHRAMMA

reported in 2013(1) KCCR 834. On this ground, the learned

counsel sought to remand the case to the trial Court for

disposal in accordance with law by receiving the evidence of

accused.

6. Per contra, Sri Jaykishan Sharma, learned counsel

appearing for the respondent-accused, submits that the

complainant has failed to discharge his burden as to legally

recoverable debt and there is no ground to remand the case

back to the trial Court for disposal afresh and accordingly

sought for dismissal of appeal.

NC: 2023:KHC:40818 CRL.A No. 249 of 2014

7. Having heard the learned counsel appearing for

parties 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?

8. My answer for the above points is as under:

Point No.1: in the affirmative

Point No.2: as per final order

Regarding Point No.1:

9. It is the case of the complaint that in order to

purchase a house the accused approached the complainant

during the first week of October, 2008 and availed sum of

Rs.4.00 lakh as loan and agreed to repay the same within six

months along with interest. When the complainant demanded

the accused to repay the amount, the complainant issued

cheque No.309106 dated 13th May, 2009 for sum of Rs.4.00

lakh. When the complainant presented the same to his banker

for encashment, the same returned with an endorsement 'funds

NC: 2023:KHC:40818 CRL.A No. 249 of 2014

insufficient'. Hence, the complainant caused legal notice dated

25th May, 2009, (wrongly mentioned as 25.05.2006 in the

impugned judgment) calling upon the accused to repay the

cheque amount. Despite service of notice, the accused has

neither repaid the cheque amount nor replied to the Notice.

Hence, the complainant filed the complaint. The trial Court has

taken cognizance against the accused for commission of offence

punishable under Section 138 of Negotiable Instruments Act,

1881. To substantiate his case, complainant examined himself

as PW1 and got marked 7 documents as Exhibits P1 to P7 and

on closure of complainant's side evidence, Statement of the

accused under Section 313 of the Code of Criminal Procedure

was recorded and thereafter, the accused has adduced his

evidence as DW1. The examination-in-chief of DW1-A.N.

Shivanna, is filed by way of affidavit, which is not in

consonance with the provisions of Section 145 of the Negotiable

Instruments Act, 1881. In the case of MANDVI CO-OPERATIVE

BANK LIMITED (supra), at paragraphs 31 and 32 of the

judgment, the Hon'ble Supreme Court has observed as under:

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"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 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

NC: 2023:KHC:40818 CRL.A No. 249 of 2014

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."

10. The Co-ordinate Bench of this Court, in the case of

SMT. BHAGYA (supra), 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

NC: 2023:KHC:40818 CRL.A No. 249 of 2014

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.".

11. 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

material contradiction of PW2, 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.

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NC: 2023:KHC:40818 CRL.A No. 249 of 2014

Regarding Point No.2:

12. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

1. Appeal allowed;

2. Judgment of acquittal dated 03rd February, 2014

passed in CC No.81 of 2010 by the Additional Civil

Judge and JMFC, Ramanagar, is set aside and the

case is restored to file;

3. 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

and also as per the judgments of Hon'ble Supreme

Court as observed by this Court in the body of the

judgment;

4. The trial Court is also directed to provide an

opportunity to both the parties to adduce their

evidence, if any;

5. Both the parties are directed to appear before the

trial Court on 11th December, 2023 without

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NC: 2023:KHC:40818 CRL.A No. 249 of 2014

seeking any further notice from the trial Court in

this regard;

6. The trial Court is directed to dispose of the case

within six months from the date of receipt of

certified copy of this judgment as the matter is of

the year 2010;

7. Registry to send the copy of this judgment along

with the trial Court record to the trial Court without

any delay.

Sd/-

JUDGE

LNN