Karnataka High Court
V M Sudhan S/O Late K P M Nair vs B R Venkatesh on 24 November, 2023
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CRL.A No. 266 of 2013
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. 266 OF 2013
BETWEEN:
V.M. SUDHAN,
S/O LATE K.P.M.NAIR,
AGED ABOUT 57 YEARS,
NO.9, GIRI GANGA HOUSE,
C.R.P. ENCLAVE BANJARA ORCHARDS,
HORAMAVU, BANASWADI,
BANGALORE - 560 043.
...APPELLANT
(BY SRI. M.J. ALVA, ADVOCATE)
AND:
B.R. VENKATESH,
S/O. B. RAMACHANDRAIAH,
AGED ABOUT 52 YEARS,
SREE VENKATESHWARA MEDICALS,
Digitally
signed by MANJUNATHA NIVAS,
SANDHYA S MAIN ROAD, HORAMAVU,
Location: BANASWADI,
High Court
of Karnataka BENGALURU - 560 043.
...RESPONDENT
(BY SRI. MANJUNATH B.R., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT OF ACQUITTAL DATED 02.03.2013 PASSED BY THE
ADDITIONAL SESSIONS JUDGE AND P.O., F.T.C.-III, MAYO
HALL, BANGALORE IN CRL.A.NO.25125/2012 AND CONFIRM
THE ORDER OF CONVICTION DATED 08.08.2012 PASSED BY
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CRL.A No. 266 of 2013
THE LEARNED XIV ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU IN CC NO.35764/2010 AND ETC.
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
Sessions Judge and P.O., FTC-III, Mayo Hall Unit, Begnaluru in
Crl.A.No.25125/2012 dated 02.03.2013.
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 are that, the
accused had purchased the Premier Padmini Car Bearing
No.KA-01-M-2012 from the complainant on 19.11.2009 for
Rs.55,000/- and taken delivery of the motor car. Towards the
same transaction, the accused issued two cheques bearing
No.027986 dated 07.12.2009 for Rs.30,000/- and No.027989
dated 18.12.2009 for Rs.20,000/- drawn on Karnataka Bank
Limited, Banaswadi Branch, Bengaluru and agreed to pay the
balance amount of Rs.5,000/- by cash on 21.11.2009. The
complainant presented the cheques for encashment through
M/s.Bank of Maharashtra, Banaswadi Branch, Bengaluru and
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the Cheques were returned with shara 'funds insufficient'. The
bank issued an endorsement on 19.12.2009. Thereafter, the
complainant got issued a legal notice on 02.01.2010 through
RPAD calling upon the accused to pay the cheques amount.
The accused received the legal notice on 04.01.2010 and sent a
reply on 23.01.2010, but didn't pay the cheque amount.
Hence, the complainant lodged a complaint under Section 138
of Negotiable Instrument Act, 1881 (hereinafter referred to as
'NI Act' for short).
4. After taking cognizance, a case was registered in
C.C.No.35764/2010. In response to the summons, accused
appeared before the trial Court and plea was recorded. The
accused pleaded not guilty and claimed to be tried.
5. To prove the case of the complainant, the
complainant got himself examined as PW.1 and got marked 14
documents as Exs.P1 to P14. On closure of complainant's side
evidence, statement of the accused under Section 313 of
Cr.P.C. was recorded as to incriminating circumstances in the
evidence of PW-1. The accused has denied the evidence of
PW-1 and adduced his evidence as DW-1 by way of affidavit
and got marked two documents as Exs.D1 and D2.
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6. On hearing the arguments, the trial Court has
convicted the accused for the commission of offence punishable
under Section 138 of NI Act and sentence to pay total fine of
Rs.75,000/-, in default to undergo simple imprisonment for one
year.
7. Being aggrieved by this impugned judgment of
conviction and order on sentence, the respondent/accused
preferred an appeal before the Additional Sessions Judge, P.O.,
FTC-III, Mayo hall Unit, Bengaluru in Crl.A.No.25125/2012. The
said appeal was allowed by the Appellate Court by setting aside
the judgment of conviction of sentence passed by the trial
Court and acquitted the accused. Being aggrieved by the
same, the appellant has preferred this appeal.
8. Learned counsel appearing on behalf of the
complainant/appellant has submitted his arguments that the
trial Court has not properly appreciated the evidence on record
in accordance with law that there is no dispute between the
parties that cheques belong to the accused and he has put his
signature and handed over to the complainant.
9. The Appellate Court has observed in the judgment
that the transaction between the complainant and accused was
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civil in nature and cheques were issued with respect to the
agreement of sale, though it was oral agreement between the
complainant and accused did not issue the cheque to discharge
any legal liability. Hence, accused has sufficiently proved the
presumption under Section 10A of NI Act to show that
complainant was not the owner of the car which was sold to
him on 19.11.2009. Hence, the complainant is not having any
right to recover the amount under the cheques from the
accused. The trial Court has received the evidence of accused
by way of affidavit, which is not permissible under the law. The
Appellate Court has also not observed the same and accepted
the defence evidence. Hence, he sought for allow this appeal.
10. As against this, the learned counsel for the
respondent submitted that the Appellate Court has properly
appreciated the evidence on record in accordance with law and
facts. Even in the absence of examination of DW-1 also, the
accused has made out a ground for acquittal. Considering the
same, the Appellate Court acquitted the accused and there are
no grounds to interfere with the impugned judgment of
acquittal and sought for dismissal of the appeal.
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11. Having heard the arguments on both sides, the
following points would arise for my consideration:-
1) whether the appellant has made out a ground to
remand the matter back to the trial Court?
2) What order?
12. My answer to the above points is as under:
Point No.1: In the affirmative;
Point No.2: As per final order.
Regarding point No.1:-
13. I have carefully examined the materials placed
before this Court. In order to prove the case of the
complainant, the complainant himself examined as PW-1 and
got marked 14 documents as Exs.P1 to P14. On closure of
complainant's side evidence, the accused adduced his
examination-in-chief by way of affidavit, which is not
permissible under law. In this regard this Court relied on the
decision of the Hon'ble Apex Court in the case of M/s Mandvi
Co-Operative Bank Limited Vs. Nimesh B.Thakore
reported in AIR 2010 SC 1402 in paragraph Nos.31 and 32,
Hon'ble Apex 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 145(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
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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
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."
14. On examination of the aforesaid decision along with
the provisions of Section 145 of NI Act, it is clear that trial
Court has not followed the provisions of Section 145 of NI Act
and received the evidence of accused by way of affidavit, which
is not permissible under law relying on the defence set up by
the accused, the Appellate Court has acquitted the accused.
15. Since the accused/respondent had not adduced his
evidence orally in accordance with law, the evidence in the
form of affidavit cannot be accepted by this Court. Hence, it is
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just and proper to remit the matter back to the Trial Court with
a direction to provide an opportunity to the accused to adduce
his oral evidence in accordance with law. Accordingly, the
complainant has made out a ground to interfere with the
impugned judgment of acquittal and remand the matter to the
trial Court for disposal in accordance with law. Hence, I
answered point No.1 in the affirmative.
Regarding point No.2:-
16. For the aforesaid reasons and discussions, I
proceed to pass the following:-
ORDER
1. The appeal is allowed;
2. The impugned judgment of acquittal passed by the
Appellate Court in Crl.A.No.25125/2012 dated
02.03.2013 on the file of Additional Sessions Judge
and P.O., FTC-III, Mayo Hall Unit, Bengaluru and
the impugned judgment passed in
C.C.No.35764/2010 dated 08.08.2012 on the file of
XIV Additional Chief Metropolitan Magistrate,
Bengaluru are set aside.
3. The matter is remitted back to the trial Court with a
direction to provide an opportunity to the accused
to adduce his oral evidence in accordance with law
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and also as per the judgment of the Hon'ble Apex
Court as observed by this Court in the body of the
judgment.
4. The trial Court is directed to provide an opportunity
to the complainant to adduce his further evidence,
if any.
5. Both the parties are directed to appear before the
trial Court on 15.12.2023, without seeking any
further notice from the trial Court in this regard.
6. The trial Court is directed to dispose off 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 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
CPN
CT:SNN
