Sri Sudhakar vs Sri M S Prakash
2023 Latest Caselaw 8826 Kant

Karnataka High Court

Sri Sudhakar vs Sri M S Prakash on 29 November, 2023

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                                                         NC: 2023:KHC:43079
                                                      CRL.A No. 392 of 2013




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 29TH DAY OF NOVEMBER, 2023

                                          BEFORE
                          THE HON'BLE MR JUSTICE G BASAVARAJA
                              CRIMINAL APPEAL NO. 392 OF 2013
                   BETWEEN:

                   SRI SUDHAKAR,
                   AGED ABOUT YEARS,
                   S/O SRI KEMPARAJ,
                   R/AT NO.18/1,
                   SHAMANNA GOWDA LAYOUT,
                   JOGUPALAYA, ULSOOR,
                   BANGALORE-560 008.
                                                               ...APPELLANT
                   (BY SRI. C.PATTABI RAMAN, ADVOCATE)
                   AND:
                   SRI M.S.PRAKASH,
                   S/O SRI M.A.SWAMY,
                   AGED ABOUT 46 YEARS,
                   R/AT NO.15/38, I 'A' CROSS,
                   JEEVANKENDRA LAYOUT,
                   CAMBRIDGE ROAD, BANGALORE-560 008.
Digitally signed                                              ...RESPONDENT
by SANDHYA S
                   (BY SRI. V.PRABHAKAR, ADVOCATE [ABSENT])
Location: High
Court of
Karnataka               THIS CRL.A. FILED U/S 378(4) CR.P.C PRAYING TO SET
                   ASIDE THE JUDGMENT AND ORDER DATED 24.07.2012 PASSED
                   BY THE ADDITIONAL SESSIONS JUDGE AND P.O., FTC.III
                   MAYO HALL, BANGALORE IN CRL.A.NO.25086/2011 -
                   ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                   PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND CONFIRM
                   THE JUDGMENT AND ORDER DATED 20.04.2011 PASSED BY
                   THE XIV ADDL. CHIEF METROPOLITAN MAGISTRATE,
                   BANGALORE IN C.C.NO.60954/2009.
                       THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
                   COURT DELIVERED THE FOLLOWING:
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                                           NC: 2023:KHC:43079
                                       CRL.A No. 392 of 2013




                          JUDGMENT

The appellant/complainant has preferred this appeal

against the judgment of acquittal passed by the Appellate

Court in Crl.A.No.25086/2011 dated 24.07.2012 on the file

of Additional Sessions Judge and P.O., FTC.III Mayo Hall

Unit, Bangalore.

2. The rank of the parties in this appeal are

referred in the same rank as referred by the Trial court.

3. Brief facts of the complaint are that the accused

approached the complainant on 01.12.2007 and received

hand loan of Rs.7,00,000/- for emergency needs. He has

assured to return the said amount within six months. The

complainant requested one of his friends who had money

for his building construction and assured him to return the

same. On the same day, the accused executed a Demand

Promissory Note for an amount of Rs.7,00,000/-.

Subsequently, the complainant approached the accused in

the month of July 2008 and requested him to repay the

amount. On 05.12.2008, the accused issued a cheque

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bearing No.682892 dated 21.02.2009 for a sum of

Rs.5,00,000/-, drawn on Bhayasarex Kshatrive Co-

operative Bank Ltd., Cantonment Branch, Bangalore and

assured him to give cash of Rs.2,00,000 on 15.12.2008.

The complainant approached the accused for Rs.2,00,000

on 15.12.2008, but the accused, issued another cheque,

bearing No.695971 dated 15.12.2008 for Rs.2,00,000

drawn on the same bank. The complainant presented both

the cheques through ING. Vysya Bank Ltd. Car Street,

Ulsoor, Bangalore, but it was dishonoured for the reason

"Funds Insufficient" in the account of the accused.

Afterwards, the complainant issued a legal notice through

RPAD and UCP calling upon him to pay the cheque amount

within 15 days from the date of receipt of the notice. After

receiving the notice, the accused neither replied nor paid

the cheque amount. The accused issued the cheques with

an assurance that it will be honoured on presentation,

after borrowing the hand loan of Rs.7,00,000. But, he

failed to keep the sufficient amount in his account. Hence,

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the complainant lodged a complaint under Section 138 of

N.I. Act.

4. After taking cognizance, a case was registered

in C.C.No.60954/2009 and summons was issued to the

accused. In response to the summons, accused appeared

before the trial Court and pleaded not guilty. To prove the

guilt of the accused, the complainant examined himself as

PW.1 and another witness as PW.2 and 11 documents got

marked as Exs.P1 to P11. On closure of complainant's side

evidence, statement of the accused under Section 313 of

Cr.P.C. was recorded. Accused had denied the evidence of

PWs.1 and 2 and adduced his oral evidence as DW.1 and

examined another witness on his behalf as DW.2 and got

marked four documents as Exs.D1 to D4. On hearing the

arguments of both sides, the trial Court convicted the

accused for the commission of offence punishable under

Section 138 of N.I. Act and sentenced to pay a fine of

Rs.8,00,000/-, in default to undergo simple imprisonment

for two years.

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5. Being aggrieved by the judgment of conviction

and order of sentence, the accused preferred an appeal

before Additional Sessions Judge and P.O., FTC.III Mayo

Hall Unit, Bangalore in Crl.A.No.25086/2011. The said

appeal was allowed by the Appellate Court on 24.07.2012

and by setting aside the judgment of conviction and order

of sentence acquitted the accused. Being aggrieved by the

impugned judgment of acquittal passed by the Appellate

Court, the complainant has preferred this appeal.

6. Learned counsel for the complainant/appellant

has submitted his arguments that the Appellate Court has

not properly appreciated the materials on record in

accordance with law and facts. The trial Court has received

the evidence of DWs.1 and 2 by way of affidavits, which is

not permissible under law. On all these grounds, he

sought to allow this appeal.

7. Respondent has remained absent. No

representation is made on behalf of the respondent.

Hence, respondent's side arguments is taken as nil.

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8. Having heard the arguments of learned counsel

for the complainant/appellant, following points would arise

for my consideration:

1. Whether the complainant/appellant has made out any ground to interfere with the impugned judgment of acquittal passed by the Appellate Court?

2. What order?

9. 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:-

10. I have carefully examined the materials placed

before this Court. To prove the case of complainant,

complainant examined himself as PW.1 and another

witness Sri.R.subramani as PW.2 and got marked 11

documents as Exs.P1 to P11. On closure of complainant's

side evidence, statement of the accused under Section 313

of Cr.P.C. was recorded. Accused had denied the evidence

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of PWs.1 and 2 and adduced his oral evidence as DW.1

and examined another witness Smt. Chandrakala on his

behalf as DW.2 by way of affidavits, which are not

permissible under law. In this regard, he has relied on the

judgment of the Apex Court in the case of M/S. MANDVI

CO-OPERATIVE BANK LIMITED v. NIMESH B.THAKORE

reported in AIR 2010 SC 1402 , wherein, paragraphs 31

and 32, read 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

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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 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."

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Accordingly, the complainant/appellant has made out

a ground to remand the matter to the trial Court with a

direction to provide an opportunity to the accused to

adduce their oral evidence. Hence, I answer point No.1 in

the affirmative.

Regarding Point No.2:-

11. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

i. The appeal is allowed;

ii. The impugned judgment of acquittal passed by the Appellate Court in Crl.A.No.25086/2011 dated 24.07.2012 on the file of Additional Sessions Judge and P.O., FTC.III Mayo Hall Unit, Bangalore and the impugned judgment passed in C.C.No.60954/2009 dated 20.04.2011 on the file of XIV Addl. Chief Metropolitan Magistrate, Bangalore are hereby set aside;

iii. The matter is remanded back to the trial Court with a direction to provide an opportunity to the accused to adduce their oral evidence in accordance with law;

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iv. The trial Court is also directed to provide an opportunity to the complainant/appellant to adduce their additional evidence, if any;

v. The appellant is directed to appear before the trial Court on 20.12.2023 without seeking any further notice from the trial Court;

vi. The trial Court is directed to secure the accused in accordance with law and proceed with the case;

vii. The trial Court is directed to dispose of the case within a period of six months from the date of appearance of the accused;

viii. Registry to send a copy of this judgment along with trial Court records to the concerned trial Court.

Sd/-

JUDGE PGG