Karnataka High Court
Sri Bansilal vs N N Chandru on 29 November, 2023
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CRL.A No. 1036 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. 1036 OF 2013
BETWEEN:
SRI BANSILAL,
S/O LATE BIRDI CHANDH,
AGED ABOUT 63 YEARS
R/AT BAZAR STREET,
NANJANAGUDU,
MYSORE DISTRICT- 571301.
...APPELLANT
(BY SRI. SHANKARANARAYANA BHAT B.,ADVOCATE)
AND:
N N CHANDRU
S/O K.R. NAGARAJU,
Digitally signed AGED ABOUT 56 YEARS,
by SANDHYA S
R/AT 2ND CROSS,
Location: High
Court of NANJANAGUDU TOWN,
Karnataka MYSORE DISTRICT -571301.
...RESPONDENT
(BY SRI. S SHARATH KUMAR.,ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 16.09.2013
PASSED BY THE ADDL. C.J. AND J.M.F.C., NANJANGUDU IN
C.C.NO.1004/2008 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
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CRL.A No. 1036 of 2013
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant-Complainant has preferred this appeal
against the judgment of acquittal dated 16.09.2013
passed in C.C.No.1004/2008 by the Court of Addl. Civil
Judge and JMFC, Nanjangud (for brevity, hereinafter
referred to as the "Trial Court").
2. For the sake of convenience, the parties in this
appeal are referred to as per their status and rank before
the Appellate Court.
3. Brief facts of the case of complainant are that
accused had issued cheque bearing No.653453 dated
07.08.2007 drawn on Kaveri Grameena Bank for
Rs.2,75,000/- for discharge of his partial debt/liability.
When the complainant has presented the same for
encashment, the same was returned on 01.09.2007 with
an endorsement "funds insufficient". Thereafter,
complainant got issued notice on 25.09.2007 through
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RPAD and COP calling upon the accused to pay the cheque
amount within fifteen days from the date of receipt of
notice. The notice sent through COP was duly served on
him. Despite the same, accused has failed to pay the
cheque amount and hence the complaint has filed
complaint on 06.11.2007. After recording sworn
statement, the Trial Court has taken cognizance for
commission of offence punishable under Section 138 of
Negotiable Instruments Act, 1881 and case was registered
in CC No.1004/2008. In pursuance of summons, the
accused appeared before the Court and substance of plea
was recorded. Accused pleaded not guilty and claimed to
be tried.
4. To prove the guilt of the accused, accused
himself got examined as PW.1 and got marked six
documents as Exhibits P1 to P6. On closure of
complainant's side evidence, statement of accused under
Section 313 of the Code of Criminal Procedure was
recorded. Accused has totally denied the evidence of
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prosecution witnesses and adduced defence evidence as
DW.1 and got marked three documents as Exhibits D1 to
D3. Upon hearing on both sides, the Trial Court has
acquitted the accused. Against the said order of acquittal,
the complainant has preferred the present appeal before
this Court.
5. Sri Shankaranarayana Bhat B, learned counsel
appearing for the appellant submits that the Trial Court
has erred in acquitting the accused by giving a finding that
the respondent has failed to discharge the initial burden as
the cheque was not issued for the refund of debt and no
evidence was led in with regard to this and the Trial Court
has failed to appreciate the evidence on record and ought
to have convicted the accused. On all these grounds, he
sought to allow the appeal.
6. There is no representation on behalf of
respondent. Hence, the arguments on behalf of
respondent is taken as nil.
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7. Having heard the learned counsel for the
appellant and on perusal of records, the following points
would arise for my consideration in this appeal:
i. Whether the appellant-complainant has
made out a ground to remand the case to
the Trial Court for cross-examination of
DWs1 and 2?
ii. What order?
8. My answer for the above points is as under:
Point No.1: in the affirmative;
Point No.2: as per final order
Regarding Point No.1:
9. I have carefully examined the materials placed
before this Court. It is not in dispute that Cheque
No.653453 belongs to the accused. It is also not in
dispute as to the signature Exhibit P1(a) signed by the
accused. The said cheque was presented for encashment
and the same was returned with an endorsement "funds
insufficient". Thereafter, the complainant caused legal
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notice through his Advocate as per Exhibit P4 calling upon
the accused to repay the cheque amount and the same
was duly served on the accused. Accused has neither
replied for the said notice nor paid the cheque amount.
Hence, the complainant has filed complaint against the
accused for commission of offence punishable under
Section 138 Negotiable Instruments Act, 1881 within
prescribed time. After recording sworn statement of the
accused, the Trial Court took cognizance of the alleged
commission of offence under Section 138 of Negotiable
Instruments Act, 1881. To prove the guilt of the accused,
the complainant got himself examined as PW.1 and six
documents were marked as Exhibits P1 to P6. On closure
of complainants side evidence, the statement under
Section 313 of Code of Criminal Procedure was recorded
and the accused has totally denied the evidence of
complainant witnesses and adduced his defence. DW.1
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
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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
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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."
10. Further, the Co-ordinate Bench of this Court, in
the case of SMT. BHAGYA v. V. SAVITHRAMMA
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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, 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.".
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11. 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 DW.1 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. But the Trial Court has not expressed any
opinion as to receiving the evidence of accused by way of
affidavit. The impugned judgment passed by 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.
12. 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 16.9.2013
passed in C.C.No.1004/2008 by the Court
of Addl. Civil Judge and JMFC, Nanjangud,
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 20.12.2023
without waiting for notice from the Trial
Court in this regard;
5. 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.
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6. Registry to send the copy of this judgment
along with Trial Court records to the Trial
Court without any delay.
Sd/-
JUDGE
SSD
