Karnataka High Court
R Venaktesh vs Smt Chandrakala on 24 November, 2023
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NC: 2023:KHC:42405
CRL.A No. 1144 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1144 OF 2012
BETWEEN:
R. VENAKTESH,
S/O LATE K.P. RATHNAM SETTY,
AGED ABOUT 58 YEARS,
C/O SANDEEP TEXTILES,
NO.6, 5TH CROSS,
MALLESWARAM,
BANGALORE - 560 003.
...APPELLANT
(BY SRI. L.S. VENKATAKRISHNA, ADVOCATE)
AND:
SMT. CHANDRAKALA,
FATHERS NAME NOT KNOWN,
Digitally signed AGED ABOUT 45 YEARS,
by SANDHYA S
Location: High WORKING AS ATTENDAR,
Court of
Karnataka INFORMATION DEPARTMENT,
NO.97, 9TH CROSS, 4TH MAIN,
MALLESWARAM,
BANGALORE - 03,
PRSESENT ADDRESS IS NO.17,
INFORMATION DEPARTMENT,
INFANTRY ROAD,
BANGALORE - 01.
...RESPONDENT
(BY SRI. N. KRISHNAPPAN, ADVOCATE)
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CRL.A No. 1144 of 2012
THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 03.07.2012 PASSED BY THE
XVIII ACMM & XX ASCJ, BANGALORE IN C.C.NO.9811/2006 -
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:
JUDGMENT
The complainant/appellant has preferred this appeal
against the judgment of acquittal passed by the Additional
ACMM and XX ASCJ, Bangalore City in CC.No.9811/2006 dated
03.07.2012.
2. The rank of the parties in this appeal are referred in
the same rank as referred by the Trial Court.
3. The brief facts of the complaint is that, the
complainant and accused have been acquainted each other
since from several years. Accused approached the complainant
for financial assistance of Rs.50,000/- as hand loan. He has
paid the hand loan of Rs.50,000/- by way of cash on
01.03.2005. Accused agreed to pay interest at the rate of 2%
p.m., and also agreed to repay the loan amount within six
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months. Despite of expiry of six months, accused has not
cleared the debt. On continuous follow ups, accused has issued
a cheque in question in his favour for Rs.50,000/- and he has
presented the same with his bank and the same was returned
with an endorsement 'Account Closed/Transferred'. He has
issued legal notice by UCP and RPAD and same was duly served
on the accused. Despite of service of notice, accused has not
cleared the debt. Thus the accused has committed the offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881.
4. In pursuance of service of summons, accused
appeared and admitted to bail. Plea was recorded. Accused has
pleaded not guilty. To prove the guilt of the accused,
complainant got examined himself as PW1 and got marked the
documents Ex.P1 to Ex.P8. On closure of complaint side
evidence statement under Section 313 of Cr.P.C was recorded.
Accused has totally denied the evidence of PW1 and he has
adduced her evidence as DW1 by way of affidavit and one
document was marked as Ex.D1.
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5. On hearing the arguments on both sides, trial Court
has passed this judgment of acquittal. Being aggrieved by this
impugned judgment of acquittal appellant has preferred this
appeal.
6. Appellant counsel remained absent.
7. Respondent counsel present.
8. Learned counsel for the respondent has submitted
his arguments that the trial Court has properly appreciated the
evidence on record in accordance with law and facts that there
are no grounds to interfere with the impugned judgment of
acquittal and sought for dismissal of the appeal.
9. On examination of the materials placed before this
Court, the evidence of DW1 reveals that she has filed affidavit
instead of her examination-in-chief which is not permissible
under law.
10. In this regard this Court relied on the decision of
the Hon'ble Apex Court in the case of MANDAVI
COOPERATIVE BANK LIMITED Vs. NIMESH B.THAKORE
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reported in 2010 (3) SCC 83 in para Nos.31 and 32, Hon'ble
Apex Court has observed as under:
"31. Mr Ranjit Kumar referred to Section 137
of the Evidence Act, that defines
"examination-in-chief", "cross-examination"
and "re-examination" and on that basis sought
to argue that the word "examine" occurring in
Section 145(2) must be construed to mean all
the three kinds of examination of a witness.
This, according to him, coupled with the use of
the word "shall" with reference to the
application made by the accused made it quite
clear that a person giving his evidence on
affidavit, on being summoned under Section
145(2) at the instance of the accused must
begin his deposition with examination-in-chief,
before he may be cross-examined by the
accused. In this regard he submitted that
Section 145 did not override the Evidence Act
or the Negotiable Instruments Act or any other
law except the Code of Criminal Procedure. He
further submitted that the plain language of
Section 145(2) was clear and unambiguous
and was capable of only one meaning and,
therefore, the provision must be understood in
its literal sense and the High Court was in
error in resorting to purposive interpretation of
the provision. In support of the submission he
relied upon the decisions of this Court
in Dental Council of India v. Hari
Prakash [(2001) 8 SCC 61] and Nathi
Devi v. Radha Devi Gupta.
32. Mr Siddharth Bhatnagar, learned counsel
for the appellant in the appeal arising from
SLP (Crl.) No. 1106 of 2007 also joined
Mr Ranjit Kumar in the submission based on
literal interpretation. He also submitted that
ordinarily the rule of literal construction should
not be departed from, particularly when the
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words of the statute are clear and
unambiguous. He relied upon Raghunath Rai
Bareja v. Punjab National Bank ."
10. In the case on hand, the trial Court in page No.22,
the trial Court has observed as under:
" In that view of the matter and in view of the
above discussions, it has become clear that
the defence taken up by the accused that, she
used to purchase dress materials on credit
basis from the Textile shop of the complainant
and she has issued Ex.P1 cheque in question
for security purpose appears to be probable
and plausible."
11. On examination of the aforesaid decision along with
the provision of Section 145 of the Negotiable Instruments Act,
1881, it is clear that the trial Court has not followed the
provisions of Section 145 of the Negotiable Instruments Act,
1881, and the evidence of accused by way of affidavit is not
permissible in law. Relying on the evidence of accused given
along with the material contradictions the trial Court has
acquitted the accused. Since the accused had not adduced her
evidence in accordance with law, the same cannot be looked
into this Court. Hence, it is just and proper to remit the matter
to the trial Court with a direction to provide an opportunity to
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the accused, to adduce her evidence in accordance with law,
accordingly complainant has made out a grounds to interfere
with the impugned judgment of acquittal. Hence, I proceed to
pass the following:
ORDER
1. The appeal is allowed.
2. The judgment of acquittal passed by XVIII
Additional ACMM and XX ASCJ, Bangalore City in
CC.No.9811/2006 dated 03.07.2012 is set-aside.
3. The matter is remitted back to the trial Court with a
direction to provide an opportunity to the accused
to adduce her oral evidence in accordance with law
and also as per the judgment of the Hon'ble Apex
Court as observed by this Court in the body of the
judgment.
4. Trial Court is directed to provide an opportunity to
both parties to adduce their evidence, if any.
5. Both parties are directed to appear before the trial
Court on 14.12.2023, without seeking any further
notice from the trial Court in this regard.
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6. The trial Court is directed to dispose off the case
within six months from the date of receipt of
certified copy of the judgment and also appearance
of both parties, as the matter is of the year 2006.
7. Registry is directed to send a copy of this judgment
along with the trial court records to the concerned
trial Court without causing any delay.
Sd/-
JUDGE
PK
CT:SNN
