Karnataka High Court

D N Shivanna vs K N Vishwas on 27 November, 2023

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                                                       NC: 2023:KHC:42780
                                                    CRL.A No. 178 of 2013




                     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.178 OF 2013 (A)
                BETWEEN:

                1.    D N SHIVANNA
                      AGED ABOUT 49 YEARS
                      S/O NANJEGOWDA
                      BEHIND KSRTC COMPOUND
                      ADUVALLI
                      HASSAN 573 201
                                                             ...APPELLANT
                (BY SRI. KAVITHA H C &.,ADVOCATE)

                AND:
                1. K N VISHWAS
                   AGED ABOUT 48 YEARS
                   S/O NAGARAJEGOWDA
                   RAYARAKOPPALU VILLAGE
Digitally          ALUR TALUK
signed by
SANDHYA S          HASSAN DISTRICT
Location:          PIN CODE
High Court of                                              ...RESPONDENT
Karnataka
                (BY SRI. MANJULA R KAMADOLLI.,ADVOCATE)

                     THIS CRL.A. IS FILED U/S. 378(4) OF CR.P.C PRAYING
                TO SET ASIDE THE ORDER DATED:4.7.12 PASSED BY THE II
                ADDL. CIVIL JUDGE (JR. DN.) AND JMFC, HASSAN IN
                C.C.NO.484/2008 - ACQUITTING THE RESPONDENT/ACCUSED
                FOR THE OFFENCE P/U/S 138 OF N.I. ACT; AND ETC.
                     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
                DAY, THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2023:KHC:42780
                                           CRL.A No. 178 of 2013




                           JUDGMENT

The complainant/appellant has preferred this appeal

against the judgment dated 04th July, 2012 passed in CC

No.484 of 2008 by the II Additional Civil Judge and JMFC,

Hassan (for short hereinafter referred to as the "trial Court")

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 on the accused,

being a friend of the complainant, approached him on 10th

January, 2006 for financial assistance of Rs.7,50,000/- for his

domestic requirements and promised to return the same within

a month. Complainant lent the amount to the accused on 15 th

January, 2006 and the accused issued a cheque bearing

No.056955 dated 15th February, 2006 for Rs.7,50,000/- drawn

on Tamilnadu Mercantile Bank Limited, Hassan Branch. The

complainant presented the cheque through his banker

Corporation Bank, Hassan Branch, but the same came to be

dishonoured with an endorsement "Funds inefficient".

Thereafter, the complainant got issued legal notice through

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RLAD and certificate of posting. In spite of service of notice,

the accused neither replied to the legal notice nor paid back the

cheque amount. Thereafter, the complaint filed complained

under Section 138 of the Negotiable Instruments Act, 1881.

Substance of accusation was recorded as to the alleged offence

and the accused pleaded not guilty and claimed to be tried. To

prove the case, complainant got himself examined as PW1 and

got marked seven documents as per Exhibits P1 to P7.

Thereafter, statement of the accused was recorded under

Section 313 of the Code of Criminal Procedure. Accused denied

all incriminating evidence appearing against him and examined

himself as DW1 and got marked one document as Exhibit D1.

4. Upon hearing the arguments on both sides, the trial

acquitted the accused for the offence punishable under Section

138 of Negotiable Instruments Act, 1881. Being aggrieved by

the impugned judgment of acquittal, the complainant has

preferred the present appeal.

5. Sri Prakash H C, learned counsel for the appellant

that the impugned judgment of acquittal is illegal and not in

accordance with law and facts. He submits that the though the

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respondent has admitted that he has issued a cheque and

admitted his signature, so also, the transaction, the trial Court

has erroneously come to a conclusion which is an error. The

learned counsel also submits that the accused though has

received the legal notice issued by the complainant, has neither

cleared the cheque amount or bothered to reply to the notice.

On all these grounds, he sought for allowing the appeal.

6. On the other hand, Smt. Manjula R. Kamadolli,

learned counsel appearing for the respondent supports the

impugned order and submits that trial Court has appreciated

the evidence on record and has acquitted the accused, which

cannot be interfered with in this appeal and hence, sought for

dismissal of the appeal.

7. I have heard the learned counsel appearing for the

parties and perused the impugned judgment of acquittal. It is

the case of the complainant that accused, approached him for

financial assistance of Rs.7,50,000/- for his domestic

requirements and promised to return the same within a month.

Complainant lent the amount to the accused on 15th January,

2006 and the accused issued a cheque bearing No.056955

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dated 15th February, 2006 for Rs.7,50,000/-. When the

complainant presented the cheque through his banker, the

same came to be dishonoured with an endorsement "Funds

inefficient". Thereafter, the complainant got issued legal notice

through RLAD and certificate of posting. In spite of service of

notice, the accused neither replied to the legal notice nor paid

back the cheque amount. Thereafter, the complaint filed

complaint under Section 138 of the Negotiable Instruments Act,

1881. To prove the case, complainant got himself examined as

PW1 and got marked seven documents as per Exhibits P1 to

P7. Accused denied all incriminating evidence appearing

against him and examined himself as DW1 and got marked one

document as Exhibit D1. DW1 has filed his affidavit in respect

of examination-in-chief. It is settled principle of law that

evidence by way of affidavit is not permissible in law. As

regards 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:

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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 evidence, the nature of its evidence may not be necessarily

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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."

8. 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:

"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,

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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.".

9. 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 affidavit evidence of DW1 and other materials,

the trial Court has allowed the appeal and acquitted the

accused. Since the accused/respondent has not adduced

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

The impugned judgment passed by both the trial Court is 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.

10. For the aforesaid reasons and discussions, I proceed

to pass the following:

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ORDER

1. Appeal allowed:

2. Judgment of acquittal dated 04th July, 2012 passed in CC No.484 of 2008 passed by the II Additional Civil Judge and JMFC, Hassan, is set aside;

3. 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 appearance of the parties, as the matter is of the year 2008;