Karnataka High Court

A B Subash S/O Late Shri Belliappa vs B T Nanjappa S/O B Thimmamiah on 27 November, 2023

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                                                           NC: 2023:KHC:42776
                                                        CRL.A No. 641 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.641 OF 2013
                   BETWEEN:

                   A B SUBASH S/O LATE SHRI BELLIAPPA
                   AGED 47 YEARS
                   R/O MADIKERI
                   KODAGU DISTRICT
                                                                 ...APPELLANT
                   (BY SRI. KIRAN KUMAR .,ADVOCATE)

                   AND:

                   B T NANJAPPA S/O B THIMMAMIAH
                   AGED ABOUT 57 YEARS
                   R/O STEWART HILL ROAD,
                   MADIKERI
                   KODAGU DSITRICT
Digitally signed                                               ...RESPONDENT
by SANDHYA S
Location: High     (BY SMT. BHARATI, ADVOCATE FOR
Court of            SRI. VENKATESH R BHAGAT, ADVOCATE)
Karnataka
                        THIS CRL.A. IS FILED U/S.397 R/W 401 OF PRAYING TO
                   SET ASIDE THE JUDGMENT AND ORDER DATED:26.12.12
                   PASSED BY THE AD-HOC DIST., JUDGE AND P.O., FTC,
                   KODAGU, MADIKERI IN CRL.A.NO.85/2007 - ACQUITTING THE
                   RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
                   ACT; AND ETC.

                        THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                             NC: 2023:KHC:42776
                                          CRL.A No. 641 of 2013




                        JUDGMENT

The complainant/appellant has preferred this appeal

against the judgment of acquittal dated 26th December, 2012

passed by the Fast Track Court, Kodagu at Madikeri in Criminal

Appeal No.85 of 2007 (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 complainant case is that the accused

borrowed a sum of Rs.2,85,000/- from the complainant on 10 th

September, 2000 and with the promise to repay the same, the

accused has issued cheque No.963258 dated 27th January,

2001 Rs.2,85,000/- drawn on Corporation Bank, Bettageri

Branch. When the cheque issued by the accused was

presented for encashment by the complainant, the same came

to be returned from the Bankers with an endorsement

"payment stopped by the drawer". On 07th March, 2011, the

complainant has issued legal notice to the accused calling upon

him to pay the cheque amount within fifteen days and it was

served on the same day. The accused failed to pay the

amount. When even after service of legal notice the accused

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failed to pay the cheque amount, the complainant filed

complaint for offence punishable under Section 138 of

Negotiable Instruments Act, 1881. The trial Court has taken

cognizance and registered a case in CC No.1740 of 2001 and

issued summons. Accused appeared before the Court and was

enlarged on bail. The substance of accusation was recorded.

Accused pleaded not guilty and claimed to be tried.

4. To prove the case, complainant got himself examined

as PW1 and got marked six documents as per Exhibits P1 to P6.

On closure of complainant's side evidence, statement under

Section 313 of Code of Criminal Procedure was recorded.

Accused has totally denied the evidence of PW1 and he has

stated that the complainant was working with him and since

the cheque was lost he has sent intimation to the Bank for stop

payment. He has also adduced his self-evidence as DW2 and

got examined the manager of Corporation Bank as DW1 and

marked three documents as Exhibits D1 to D3.

5. On hearing both sides, the trial Court has convicted

the accused for the offence punishable under Section 138 of

Negotiable Instruments Act, 1881 and sentenced the accused

to undergo simple imprisonment for a period of six months and

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to pay a fine of Rs.5,000/- in default to pay fine amount, the

accused shall undergo further simple imprisonment for a period

of two months. The trial Court also directed the accused to pay

a sum of Rs.4,30,000/- to the complainant towards

compensation. Being aggrieved by the said judgment of

conviction and order of sentence, the accused preferred appeal

before the Fast Track Court, Kodagu in Crime No.85 of 2007.

The said appeal was allowed by the Fast Track Court and

acquitted the accused. Being aggrieved by the judgment

passed in Criminal Appeal No.85 of 2007 by the Fast Track

Court, the complainant has preferred the present appeal.

6. Sri Kiran Kumar, learned counsel appearing for the

appellant/complainant submits that the judgment of acquittal

passed by the learned Sessions Judge is contrary to law and

facts. The Sessions Court has not properly appreciated the

evidence on record in accordance with law and facts and the

trial Court has received the evidence of DW2 filed by way of an

affidavit, which is not permissible in law. On all these grounds,

the learned counsel for the appellant sought to allow the

appeal.

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7. On the other hand, Smt. Bharati, learned counsel

appearing for the respondent submits that the trial Court has

properly appreciated the evidence on record in accordance with

law and there is no ground to interfere with the impugned

judgment of acquittal and accordingly, sought to dismiss the

appeal.

8. I have carefully examined the materials placed before

this Court. It is the case of the complainant that on 10th

September, 2000 accused borrowed a sum of Rs.2,85,000/-

from the complainant and with a promise to repay the same,

the accused has issued cheque No.963258 dated 27th January,

2001 Rs.2,85,000/- drawn on Corporation Bank, Bettageri

Branch. The cheque issued by the accused was presented for

encashment by the complainant came to be returned from the

Bankers with an endorsement "payment stopped by the

drawer". Hence, the complainant has issued legal notice to the

accused calling upon him to pay the cheque amount within

fifteen days and it was served on 07th March, 2011. The

accused failed to pay the amount. When the accused failed to

pay the cheque amount even after service of legal notice, the

complainant filed complaint for offence punishable under

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Section 138 of Negotiable Instruments Act, 1881. To

substantiate the case of the complainant, two witnesses were

examined on behalf of the accused. The Bank Manager was

examined as DW1 and accused got himself examined as DW2.

DW2 has filed his affidavit in respect of examination-in-chief,

which 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:

"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

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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 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."

9. 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

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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, 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.".

10. 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 DWs1 and 2 and other materials, the

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Appellate 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.

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.

11. For the aforesaid reasons and discussions, I proceed

to pass the following:

ORDER

1. Appeal allowed:

2. Judgment of acquittal dated 26th December,

2012 passed by the Fast Track Court, Kodagu

at Madikeri in Criminal Appeal No.85 of 2007, is

set aside;