Karnataka High Court

Dr S Ashok vs Smt Mahima Mohan Champa on 27 November, 2023

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                                                            NC: 2023:KHC:42777
                                                        CRL.A No. 1058 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.1058 OF 2013
                   BETWEEN:

                   DR S ASHOK
                   S/O LATE SOMASHEKARAIAH
                   AGED ABOUT 50 YEARS
                   R/AT NO.33, THOMAS LAYOUT,
                   NANJANGUD TOWN & TALUK
                   MYSORE DISTRICT-571301
                                                                  ...APPELLANT
                   (BY SRI. SRINIVASA D C. ,ADVOCATE)

                   AND:

                   SMT MAHIMA MOHAN CHAMPA
                   W/O DR. SUDARSHAN
                   AGED ABOUT 40 YEARS
Digitally signed   R/AT NO.33, " GEETHA ",
by SANDHYA S
                   VIVEKANANDA ROAD,
Location: High
Court of           YADAGIRI,
Karnataka          MYSORE-570004
                                                                ...RESPONDENT
                   (BY SRI. ABUBACKER SHAFI, ADVOCATE)

                        THIS CRL.A. IS FILED U/S. 378(4) OF CR.P.C PRAYING
                   TO SET ASIDE THE ORDER DATED:28.9.13 PASSED BY THE
                   ADDL.C.J. AND JMFC, NANJANAGUDU IN C.C.NO.379/2007 -
                   ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                   P/U/S 138 OF N.I. ACT; AND ETC.
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                                               NC: 2023:KHC:42777
                                         CRL.A No. 1058 of 2013




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

This appeal is preferred by the complainant against the

Judgment of acquittal dated 28th September, 2013 passed in

CC No.379 of 2007 on the file of Additional Civil Judge and

JMFC, Nanjanagudu (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. The accused, who happens to be a relative of the

complainant, approached the complainant in the month of

February 2005 and borrowed a sum of Rs.80,000/- for her legal

necessities and agreed to repay the same within an year.

Further, towards part payment of the amount, the respondent-

accused has issued cheque bearing No.384481 dated 10th

January, 2007 for Rs.50,000/-. When the complainant

presented the cheque for encashment, the bankers had

returned the same with endorsement "insufficient funds" and

"payment stopped by the drawer". Thereafter, the complainant

caused legal notice to which the accused has not replied.

Thereafter, the complainant filed case against the respondent-

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accused under Section 138 of Negotiable Instruments Act,

1881. The trial Court had taken cognizance of the same and

registered case in CC No.379 of 2007 and issued summons to

the accused. In response to summons, the respondent-

accused appeared 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 eighteen documents as per Exhibits P1

to P18. On closure of complainant's side evidence, statement

under Section 313 of Code of Criminal Procedure was recorded.

The accused has totally denied the evidence of PW1 and she

has also adduced her self-evidence as DW1 and marked

fourteen documents as Exhibits D1 to D14.

5. The trial Court, after hearing both the parties,

acquitted the accused. Being aggrieved by the impugned

judgment of acquittal, the appellant/complainant is before this

Court in the present appeal.

6. Sri Srinivasa D.C., learned counsel appearing for the

appellant submits that the respondent-accused in order to

commit fraud and cheat the appellant/complainant, has

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instructed her banker to stop payment. The learned counsel

further submits that though the appellant has proved the case

by adducing cogent and reliable evidence, the trial Court has

failed to appreciate the facts in accordance with law and has

committed an error in acquitting the respondent-accused. The

order of acquittal passed by the trial Court is based only on

surmises, conjectures and not based on the appreciation of

evidence adduced by the complainant. On all these grounds he

prays to allow the appeal.

7. On the other hand, Sri Abubaker Shafi, learned

counsel appearing for the respondent-accused, submits that the

Tribunal, after considering the material placed and the evidence

adduced before it, has passed the impugned judgment of

acquittal and there is no ground for interference and hence

sought to dismiss the appeal.

8. Heard the learned counsel for the parties and gone

through the trial court records and perused the impugned

judgment. The case of the complainant is that the respondent-

accused, approached the complainant in the month of February

2005 and borrowed a sum of Rs.80,000/- for her legal

necessities and agreed to repay the same within an year.

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Further, towards part payment of the amount, the respondent-

accused has issued cheque bearing No.384481 dated 10th

January, 2007 for Rs.50,000/-. When the complainant

presented the cheque for encashment, the same was returned

with endorsement "insufficient funds" and "payment stopped by

the drawer". The complainant caused legal notice to which the

accused has not replied. Since the accused has neither replied

to the legal notice nor paid the cheque amount, the

complainant filed case against the respondent-accused under

Section 138 of Negotiable Instruments Act, 1881. The trial

Court took cognizance of the same and registered case in CC

No.379 of 2007. In response to summons, the respondent-

accused appeared and was enlarged on bail. Accused pleaded

not guilty and claimed to be tried. The complainant got himself

examined as PW1 and got marked eighteen documents as per

Exhibits P1 to P18. On closure of complainant's side evidence,

statement under Section 313 of Code of Criminal Procedure

was recorded. The accused has totally denied the evidence of

PW1 and she has also adduced her evidence in the form of

affidavit. It is settled principle of law that evidence, by way of

affidavit, is not permissible in law. In this regard, it is relevant

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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 154(1)......", it was not open to the High Court to fill up the self perceived blank. Secondly, the High

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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

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

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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 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

judgment passed by trial Court is not in consonance with the

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

Section 145 of Negotiable Instruments Act, 1881. Accordingly,

in my considered opinion this is a fit case to be remitted back

to the trial Court disposal afresh

For the aforesaid reasons and discussions, I proceed to

pass the following:

ORDER

1. Appeal allowed:

2. Judgment of acquittal dated 28th September,

2013 passed by the Additional Civil Judge and

JMFC, Nanjanagudu, 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;

4. Both the parties are directed to appear before

the trial Court on 15th December, 2023 without

waiting for notice from the trial Court in this

regard;