Karnataka High Court
Smt Roopa B R vs Thimmegowda on 13 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2025:KHC:1080
CRL.A No. 1713 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1713 OF 2018
BETWEEN:
SMT. ROOPA B R
D/O RAMADAS
AGED ABOUT 29 YEARS
R/AT, GADDEBINDENAHALLI VILLAGE
KASABA HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 34.
...APPELLANT
Digitally signed by
LAKSHMINARAYANA (BY SRI PRATHEEP K C, ADVOCATE)
MURTHY RAJASHRI
Location: HIGH
COURT OF AND:
KARNATAKA
THIMMEGOWDA
S/O LAKKEGOWDA
AGED ABOUT 48 YEARS
R/AT MURARAHALLI VILLAGE
DANDIGANAHALLI HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 34.
...RESPONDENT
(SERVED AND UNREPRESENTED)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 07.09.2018
PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C.,
CHANNARAYAPATNA IN C.C.No.247/2015 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT AND ETC.,
-2-
NC: 2025:KHC:1080
CRL.A No. 1713 of 2018
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the complainant praying
to set aside the judgment of acquittal dated 07.09.2018
passed in C.C. No. 247/2015 by the Principal Civil Judge
and JMFC, Channarayapatna, whereunder the respondent -
accused has been acquitted for offence under Section 138
of Negotiable Instruments Act (for short hereinafter
referred to as `N.I. Act').
2. The appellant - complainant initiated
proceedings against the respondent - accused for offence
under Section 138 of N.I. Act and it was pending on the
file of Principal Civil Judge and JMFC, Channarayapatna in
C.C. No. 247/2015. In the said criminal case the appellant
- complainant has been examined as P.W.1 and got
documents marked as Ex.P.1 to Ex.P.4. The respondent -
accused has been examined as D.W.1 and he has also got
NC: 2025:KHC:1080
examined one witness as D.W.2 and got marked Ex.D.1 to
Ex.D.5. Statement of the respondent - accused has been
recorded under Section 313 of Cr.P.C. Learned Magistrate,
after hearing arguments on both sides, formulated points
for consideration and passed the impugned judgment of
acquittal. Said judgment of acquittal has been challenged
in this appeal by the complainant.
3. Heard learned counsel for appellant -
complainant.
4. Learned counsel for appellant - complainant
would contend that the respondent - accused who has
been examined as D.W.1 has tendered affidavit by way of
evidence. Even the other witness examined on behalf of
the accused as D.W.2 has tendered his evidence by way of
affidavit. Learned counsel submits that in view of the
judgment of the Hon'ble Apex Court in the case of
Mandovi Cooperative Bank Limited Vs. Nimesh B.
Thakore reported in 2010 (3) SCC 83 and in the case of
Indian Bank Association Vs. Union of India reported
NC: 2025:KHC:1080
in 2014 (5) SCC 590, the statute does not confer a right
on the accused to file his affidavit by way of evidence. He
further submits that based on the said two decisions a
coordinate Bench of this Court in the case of Mrs. Zaheda
Inamdhar Vs. Dr. Fatima Hassina Sayeedha, W.P.
No. 3519/2024 disposed of on 19.07.2024, placing
reliance on the said two decisions of the Hon'ble Apex
Court, has held that the accused has no right to tender his
evidence by way of affidavit. On this ground learned
counsel for appellant prays to set aside the impugned
judgment of acquittal and remand the matter for leading
evidence of accused and his witness as per law.
5. Having heard learned counsel for the appellant
- complainant, this Court has perused the impugned
judgment of acquittal and the trial Court records.
6. The offence alleged against the respondent -
accused is offence under Section 138 of the N.I. Act. In
the proceedings initiated against the accused under
Section 138 of the N.I. Act the respondent - accused who
NC: 2025:KHC:1080
has been examined as D.W.1 has tendered his evidence by
way of affidavit. Even the other witness who has been
examined on behalf of respondent - accused as D.W.2 has
also tendered his evidence by way of affidavit. In the light
of the decisions of the Hon'ble Apex Court referred to
supra, the N.I. Act only confers a right on the complainant
to file an affidavit by way of evidence and the same right
is not conferred on the accused. In the instant case,
learned Magistrate has committed an error by permitting
the respondent - accused (D.W.1) and the witness
examined on his behalf (D.W.2) to tender their evidence
by way of affidavit. Considering the said aspect the
impugned judgment of acquittal passed by the trial Court
placing reliance on the evidence of D.W.1 and D.W.2
requires to be set aside and the matter requires to be
remanded to the trial Court to proceed from the stage of
defence evidence.
7. In the result, the following;
ORDER
NC: 2025:KHC:1080
i. The appeal is allowed.
ii. The judgment of acquittal dated 07.09.2018 passed
in C.C. No. 247/2015 by the Principal Civil Judge and
JMFC, Channarayapatna is set aside.
iii. The matter is remanded to the Principal Civil Judge
and JMFC, Channarayapatna, with a direction to
proceed from the stage of defence evidence and
dispose of the case in accordance with law on merits.
iv. Registry is directed to return the trial Court records
along with copy of this judgment.
v. The complainant is directed to appear before the trial
Court on 18.02.2025.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
