Karnataka High Court

Sri N P Ravish vs Smt K N Annapurna on 27 November, 2023

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                                                            NC: 2023:KHC:42779
                                                      CRL.A No. 272 of 2012




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                        BEFORE
                        THE HON'BLE MR JUSTICE G BASAVARAJA
                         CRIMINAL APPEAL NO.272 OF 2012 (A)
               BETWEEN:

               1.   SRI N P RAVISH
                    AGED 42 YEARS S/O PUTTALAKSHMAIAH R/O
                    RAJALAKSHMI NILAYA, MUDLAPANNE, HULIKUNTE
                    POST, KORTAGERE TALUK,
                    TUMKUR DISTRICT
                                                         ...APPELLANT
               (BY SRI. K N. NITISH, ADVOCATE)

               AND:

               1.   SMT K N ANNAPURNA
                    AGED 48 YEARS W/O D C RANGANATHA R/O NO.6,
                    2ND CROSS, KOLLAPURAMMA TEMPLE ROAD,
                    AGRAHARA, TUMKUR
Digitally
signed by                                              ...RESPONDENT
SANDHYA S
               (BY SRI. SHREYAS N, ADVOCATE FOR
Location:
High Court      SRI PATEL D KAREGOWDA, ADVOCATE)
of Karnataka
                      THIS CRL.A IS FILED U/S.478(4) OF CR.P.C PRYAING
               TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
               DT.25/5/2011    PASSED   BY   THE   FTC-V,    MADHUGIRI    IN
               CRL.APPEAL     No.92/2008-ACQUITTING     THE      APPELLANT/
               RESPONDENT FOR THE OFFENCE P/U/S.138 OF N.I. ACT; AND
               ETC.
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                                              NC: 2023:KHC:42779
                                           CRL.A No. 272 of 2012




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                           JUDGMENT

The appellant/complainant has preferred this appeal

against the judgment of acquittal dated 25th May, 2011

passed by the Fast Track Court-V at Madhugiri in Crl.Appeal

No.92 of 2008 (for short hereinafter referred to as the "Trial

Court") acquitting the respondent-accused.

2. For the sake of convenience, the parties in this

appeal are referred to with their status and rank before the

trial Court.

3. Brief facts of the case are that, the complainant

and accused are known to each other. On 16th October,

2005, accused borrowed a hand loan of Rs.2,50,000/- from

the complainant for her needs and necessity and assured to

repay the same within three months. In that regard, the

accused has issued a post-dated cheque bearing No.253309

dated 16th January, 2006 drawn on Tunkur Grain Merchants'

Co-operative Bank Limited, assuring the complainant to

present the cheque. On the given date, when the cheque was

presented by the complainant through his banker Karnataka

NC: 2023:KHC:42779

Bank, Koratagere Branch for encashment, the same was

returned with an endorsement "insufficient funds". Therefore,

the complainant got issued legal notice calling upon the

accused to repay the cheque amount within fifteen days. But

the said Notice returned un-served on 13th March, 2006.

Hence, the complainant filed complaint under Section 138 of

the Negotiable Instruments Act, 1881. The trial Court took

cognizance for the alleged commission of offence and a case

came to be registered in CC No.188 of 2006 and summons

was issued. Pursuant to issuance of summons, accused

appeared and was enlarged on bail. Thereafter, plea was

recorded for the offence punishable under Section 138 of

Negotiable Instruments Act, 1881 and the substance of

accusation was read over and explained to the accused.

Accused pleaded not guilty and claimed to be tried. In order

to prove the case, complainant got himself examined as PW1

and examined the Manager of TGMC Bank as PW2 and got

marked six documents as per Exhibits P1 to P6. On closure of

the complainant's side evidence, statement of the accused

under Section 313 of Indian Penal Code was recorded. The

accused denied all the incriminating evidence appeared

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against her and examined herself as DW1 and no documents

were marked in support of defence. Having heard the parties,

the trial Court has convicted the accused for commission of

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881. Further the accused was sentenced to

undergo simple imprisonment for a period of one year and to

pay fine of Rs.2,55,0000/-, in default of payment of fine

amount, accused shall further undergo simple imprisonment

for a period of three months. Being aggrieved by the

judgment of trial Court, the accused preferred appeal in CA

No.92 of 2008 before the Fast Track-V at Madhugiri. The

appellate Court has allowed the appeal and convicted the

accused. Being aggrieved by 6he judgment, the complainant

has preferred the present appeal.

4. Sri K N Nitish, learned counsel appearing for the

appellant submits that the appellate Court has not properly

appreciated the evidence on record in accordance with law

and facts. He submits that the respondent has adduced her

evidence by way of affidavit, which is not permissible under

law. The trial Court has properly appreciated the evidence on

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record in accordance with law and facts and the reasons

assigned by the Appellate Court is contrary to provisions

under Section 139 of Negotiable Instruments Act, 1881 and

the decisions of Hon'ble Supreme Court. On all these grounds

he prays for allowing the appeal.

5. On the other hand Sri Shreyas N, learned counsel

appearing for the respondent submits that the Appellate Court

has properly appreciated the materials placed before it and

the evidence on record and there is no ground for interference

in the impugned judgment of acquittal passed by the

Appellate court and accordingly sought for dismissal of the

appeal.

6. Heard the learned counsel for the parties. It is

the case of the complainant that the complainant and accused

are known to each other. On 16th October, 2005, accused

borrowed a hand loan of Rs.2,50,000/- from the complainant

for her needs and necessity with an assurance to repay the

same within three months and had issued a post-dated

cheque bearing No.253309 dated 16th January, 2006 drawn

on Tunkur Grain Merchants' Co-operative Bank Limited.

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When the cheque was presented by the complainant through

his banker for encashment, the same was returned with an

endorsement "insufficient funds". Therefore, the complainant

got issued legal notice calling upon the accused to repay the

cheque amount within fifteen days which was returned un-

served on 13th March, 2006. Hence, the complainant filed

complaint under Section 138 of the Negotiable Instruments

Act, 1881. The trial Court taking cognizance for the alleged

commission of offence registered a case in CC No.188 of

2006. Pursuant to issuance of summons, accused appeared

and was enlarged on bail. Thereafter, plea was recorded for

the offence punishable under Section 138 of Negotiable

Instruments Act, 1881; the substance of accusation was read

over to the accused. Accused pleaded not guilty and claimed

to be tried. In order to prove the case, complainant got

himself examined as PW1 and examined the Manager of TGMC

Bank as PW2 and got marked six documents as per Exhibits

P1 to P6. The statement of the accused under Section 313 of

Indian Penal Code was recorded. The accused denied all the

incriminating evidence and adduced her evidence through

affidavit, which is not permissible under law. As regards

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acceptance of evidence in the form of affidavit, it is relevant

to refer to the dictum of Hon'ble Supreme Court in the case of

MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH B.

THAKORE reported in AIR 2010 SC 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

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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 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."

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

case of SMT. BHAGYA v. V. SAVITHRAMMA reported in 2013(1)

KCCR 834, 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:

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"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 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.".

8. 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 DW1 and other materials, the

Appellate Court has allowed the appeal and acquitted the

accused. Since the accused/respondent has not adduced

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evidence in accordance with law, same cannot be looked into.

But both the Courts have not expressed any opinion as to

receiving the evidence of accused by way of affidavit. The

judgments passed by both the Courts are not in consonance

with the judgment of the Hon'ble Apex Court and also

provisions of Section 145 of Negotiable Instruments Act,

1881. Accordingly, in my considered opinion, it is a fit case

for remand to the trial Court for disposal afresh.

9. For the aforesaid reasons and discussions, I proceed

to pass the following:

ORDER

1. Appeal allowed:

2. Judgment of acquittal dated 25th May, 2011

passed by the Fast Track Court-V, Madhugiri

in Criminal Appeal No.92 of 2008, is set

aside;

3. Judgment of conviction and order of sentence

passed by Additional Civil Judge (Jr. Dn.) and

JMFC at Koratagere in CC No.188 of 2006

dated 13th June, 2008, is set aside;

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4. The matter is remitted back to the trial Court

with a direction to give an opportunity to both

parties to adduce their oral evidence, if any;

5. Both the parties are directed to appear before

the trial Court on 20th December, 2023

without waiting for notice from the trial Court

in this regard;

6. The trial Court is directed to dispose of the

case as expeditiously as possible and in any

event, within six months from the date of