Karnataka High Court

S N Shanmukha vs B M Ravi on 3 January, 2024

                                             -1-
                                                            NC: 2024:KHC:190
                                                      CRL.RP No. 226 of 2016




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 3RD DAY OF JANUARY, 2024

                                           BEFORE
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                       CRIMINAL REVISION PETITION NO. 226 OF 2016

                   BETWEEN:

                   S.N. SHANMUKHA,
                   S/O NINGAPPA,
                   41 YEARS, OCC:TEACHER,
                   BADAVANA DENNI,
                   MUDIGERE TALUK,
                   CHIKMAGALORE DIST - 577 527.
                                                               ...PETITIONER
                   (BY SRI. NAGARAJ R.C., ADVOCATE)

                   AND:

                   S. PRASANNA KUMAR,
                   S/O MARULAIAH,
                   30 YEARS, MERCHANT,
                   R/O BELAGURU VILLAGE,
                   SRIRAMPURA HOBLI,
Digitally signed
by SANDHYA S       HOSADURGA TALUK,
Location: High     CHITRADURGA DIST - 577 527.
Court of                                                    ...RESPONDENT
Karnataka
                   (BY SRI. M.T. JAGAN MOHAN, ADVOCATE [ABSENT])

                        THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
                   PRAYING TO SET ASIDE THE ORDER IN C.C.NO.649/2010 ON
                   THE FILE OF THE PRL. CIVIL JUDGE & JMFC AT HOSADURGA
                   DATED 05.06.2014 AND CONFIRMED IN CRL.A.NO.98/2014
                   DATED 24.03.2015 ON THE FILE OF THE ADDL. DISTRICT &
                   SESSIONS JUDGE, CHITRADURGA.

                        THIS PETITION, COMING ON FOR HEARING, THIS DAY,
                   THE COURT MADE THE FOLLOWING:
                                    -2-
                                                       NC: 2024:KHC:190
                                                 CRL.RP No. 226 of 2016




                                 ORDER

The revision petitioner/accused has preferred this revision

petition against the judgment of conviction and order of

sentence passed by the Prl. Civil Judge and JMFC, Hosadurga in

C.C.No.649/2010 dated 05.06.2014 (for short hereinafter

referred to as 'trial Court'), which is confirmed by the Addl.

District & Sessions Judge, Chitradurga in Crl.A.No.98/2014

dated 24.03.2015.

2. The rank of the parties in this petition are referred

in the same rank before the trial Court.

3. Learned counsel appearing on behalf of the revision

petitioner/accused has submitted his arguments that, the

respondent/complainant had filed a complaint under Section

138 of N.I. Act. 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.3,20,000/- and in default of

payment of fine, he shall undergo simple imprisonment for a

period of six months. The trial Court also awarded

compensation of Rs.3,00,000/- in favour of the complainant.

NC: 2024:KHC:190

4. Being aggrieved by this judgment of conviction and

order of sentence, the accused had preferred an appeal in

Crl.A.No.98/2014 before the Addl. District & Sessions Judge,

Chitradurga. The same was dismissed by the Appellate Court

on 24.03.2015.

5. Further, he submits that the trial Court has received

the evidence of accused by way of affidavit instead of

examination in chief, which is not permissible under the

provisions of Section 145 of N.I. Act and also decision of

Hon'ble Apex Court in the case of M/S. MANDVI CO-

OPERATIVE BANK LIMITED v. NIMESH B.THAKORE reported in

AIR 2010 SC 1402, and sought for remanding the matter to the

trial Court to provide an opportunity to the accused to adduce

his evidence in accordance with law.

6. Learned counsel for the respondent/complainant

remained absent, despite providing sufficient opportunity.

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

7. I have carefully examined the materials placed

before this Court. The same would reveal that, DW.1-

Shanmukhappa, has adduced his evidence by way of affidavit

NC: 2024:KHC:190

evidence, which is not permissible under the provisions of

Section 145 of N.I. Act and also decision of Hon'ble Apex Court

in the case of M/S. MANDVI CO-OPERATIVE BANK LIMITED

(supra), wherein, at paragraphs 31 and 32, it is 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 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

NC: 2024:KHC:190

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."

8. Further, the Co-ordinate Bench of this Court, in the

case of SMT. H.BHAGYA Vs. SMT. R.SAVITHRAMMA reported in

2013(1) KCCR 834, relying upon the judgment of the Hon'ble

Supreme Court in the case of M/s. MANDVI CO-OPERATIVE

BANK LIMITED (supra), at paragraphs 10 & 11 of the

judgment, has observed as under:

"10. On this aspect of the matter, learned Counsel for the appellant has placed reliance on the decision of Apex Court reported in AIR 2010 SC 1402 (M/s. Mandv Co-op

NC: 2024:KHC:190

Ban Ltd., Vs Nimesh B Thakore). In the aforesaid decision, Section 145(1) of the Act was taken into consideration and in the said case, this Court had given direction stating that there is no express bar on the accused to give evidence on affidavit either in the Act or in the Code. This Court had held that providing similar right to the accused would be in furtherance of legislative intent to make a trial far swifter. This direction issued by the Court was challenged in the decision referred above before the Apex Court and in para 35 it observed thus:

"35. In Duport Steels Ltd. Vs Sirs (1980) 1 All ER 529, 534, Lord Scarman expounded the legal position in the following words:

"But in the field of statue law the judge must be obedient to the will of parliament as expressed in its enactments. In this field Parliament makes and unmakes the law. The judge's duty is to interpret and to apply the law not to change it to meet the judge's idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing construction are possible. But our law require the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute."

Ultimately it held thus:

"In light of the above, we have no hesitation in holding that the High Court was in error in

NC: 2024:KHC:190

taking the view, that on a request made by the accused the Magistrate may allow him to tender his evidence on affidavit and consequently, we set aside the direction as contained in sub- paragraph (r) of paragraph 45 of the High Court judgment. The appeal arising from SLP (Crl.) No.3915/2006 is allowed.""

"11. So, when the law provides specific procedure as to how the evidence has to be recorded, the same has to be followed as it is and it is only because generally in exceptional cases, the accused is examined and it 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."

9. On examination of the aforesaid decision along with

provisions of Section 145 of N.I. Act, it is clear that the trial

Court has not followed the provisions of Section 145 of N.I. Act.

Even the Appellate Court has not observed the same. Since the

NC: 2024:KHC:190

accused had not adduced his evidence in accordance with law,

the same cannot be looked into by this Court. Hence, it is just

and proper to remand the matter to the trial Court with a

direction to provide an opportunity to the accused to adduce his

evidence in accordance with law. Hence, I proceed to pass the

following:

ORDER

1. The Criminal Revision Petition is allowed;

2. The judgment of conviction and order sentence

passed by the Prl. Civil Judge & JMFC, Hosadurga

in C.C.No.649/2010 dated 05.06.2014, which is

confirmed by the Addl. District & Sessions Judge,

Chitradurga in Crl.A.No.98/2014 dated

24.03.2015 are hereby set aside;

3. The matter is remanded back to the trial Court

with a direction to provide an opportunity to the

accused to adduce his oral evidence in

accordance with law;