Karnataka High Court
Sri K V Venkatachalapathy vs Sri Atul Kumar K N on 14 November, 2025
-1-
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CRL.A No. 635 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 635 OF 2013 (A)
BETWEEN:
SRI K. V. VENKATACHALAPATHY
(SINCE DEAD BY HIS LR'S)
1(a). SMT. K.V. SATHYALAKSHMI
W/O LATE K.V. VENKATACHALAPATHY,
AGED ABOUT 69 YEARS
1(b). SMT. K.V. SHARANYA
D/O LATE K.V. VENKATACHALAPATHY,
AGED ABOUT 34 YEARS,
BOTH ARE RESIDING AT:
NO.59.1, GANAPA NILAYA,
3RD FLOOR,
RAMAIYENGER ROAD,
Digitally signed by V.V. PURAM,
LAKSHMINARAYAN N
Location: HIGH COURT
BENGALURU-560004.
OF KARNATAKA
...APPELLANTS
(BY SRI. SHRAVAN S. LOKRE, SR. COUNSEL FOR
SRI. SAMARTH S. LOKRE, ADV.)
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 31.10.2023.)
AND:
SRI. ATUL KUMAR K. N.
MAJOR IN AGE
R/A NO.26/3, 2ND FLOOR,
4TH CROSS, SRINIVASANILAYA,
-2-
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CRL.A No. 635 of 2013
HC-KAR
OPP. ITL PRIMARY SCHOOL,
K.V. LAYOUT, IV BLOCK
JAYANAGAR, BANGALORE - 560011.
...RESPONDENT
(BY SRI. A N RADHAKRISHNA, ADV.)
THIS CRL.A. IS FILED U/S.378(3) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:23.01.2013 PASSED BY THE
ADDL. SESSIONS JUDGE, P.O., FTC-III, MAYO HALL,
BANGALORE IN CRL.A.NO.25114/2012 - ACQUITTING THE
RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
Complainant has preferred this appeal against the
judgment of acquittal dated 23rd January, 2013 passed in
Crl.A.No.25114 of 2012 by the Additional Sessions Judge
and & Presiding Officer, FTC-III, Mayo Hall Unit, Bangalore
(for short, "the first Appellate Court") by which order, the
appeal filed by the accused came to be allowed by setting
aside the judgment of conviction and sentence dated 31st
July, 2012 passed in CC No.26858 of 2011 by the XIV
ACMM, Bangalore (for short "the trial Court").
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2. For the sake of convenience, the parties herein
are referred to as per their rank and status before the trial
Court.
3. Brief facts of the complaint are that the accused
approached the complainant for hand loan of
Rs.15,00,000/- on 01st October, 2010 for domestic
purposes and agreed to repay the same with interest
within short period. Calculating the interest, the accused
also issued cheque bearing No.801795 dated 27th May,
2011 for Rs.17,70,000/- drawn on Syndicate Bank,
Shantinagar Branch, Bangalore towards discharge of his
liability. When the complainant presented the cheque for
encashment, the same was returned with endorsement
"funds insufficient" and the Bank issued return memo on
28th May, 2011. The complainant got issued Notice on 01st
June, 2011 through RPAD as well as through Courier.
Accused received Notice on 03rd June, 2011, but neither
replied to notice nor paid the cheque amount. Hence,
complainant has lodged complaint under Section 138 of
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Negotiable Instruments Act, 1881. The trial Court took
cognizance against the accused for commission of offence
under the aforesaid Section and case came to be
registered in CC No.26858 of 2011. Summons was issued.
In response to summons, accused appeared before the
trial Court and enlarged on bail. Substance of plea was
recorded. Accused pleaded not guilty and claimed to be
tried. To prove the guilt of the accused, one witness was
examined as PW1, eleven documents were marked as
Exhibits P1 to P11. On closure of complainant's side
evidence, statement of the accused under Section 313 of
Code of Criminal Procedure was recorded. Accused denied
the evidence of PW1 and adduced his evidence by way of
Affidavit on 05th June, 2012. Though accused adduced his
evidence, no document was marked on his behalf. Having
heard the arguments on both sides, the trial Court
convicted the accused for offence under Section 138 of
Negotiable Instruments Act and sentenced the accused to
pay fine of Rs.17,70,000/-, in default, to undergo simple
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imprisonment for a period of one year. Being aggrieved
by the impugned judgment passed by the trial Court, the
accused has preferred appeal before the first Appellate
Court in Criminal Appeal No.25114 of 2012. The same
came to be allowed by judgment dated 23rd January, 2013
whereby the judgment of conviction passed by the trial
Court came to be set aside, consequently accused was
acquitted. Being aggrieved by the said judgment of
acquittal passed by the first Appellate court, the
complainant has preferred this appeal.
4. Sri Shravan S. Lokre, learned Senior Counsel
appearing for Sri Samarth S. Lokre, counsel appearing for
the appellant, would submit that the respondent-accused
has adduced his evidence by way of affidavit, which is not
permissible in law. Though the first Appellate court has
discussed about the evidence of DW1 at paragraph 8 of
the judgment, but has acquitted the accused. The
evidence of DW1, which is filed by way of affidavit, is not
permissible under law. The first Appellate Court ought not
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to have considered the evidence of DW1. However, the
first Appellate Court has considered the same. In view of
the judgment of Hon'ble Supreme Court in the case of
MANDVI CO-OPERATIVE BANK v. NIMESH B. THAKORE
reported in AIR 2010 SC 1402, accused cannot be allowed
to tender evidence by way of affidavit. Hence, he sought
to remand the case to the trial Court to provide an
opportunity to the accused to adduce his oral evidence, in
accordance with law. Accordingly, he sought to allow the
appeal.
5. Sri A.N. Radhakrishna, learned counsel
appearing for the respondent-accused has no objection to
remand the matter to the trial Court with a direction to
provide opportunity to the accused to adduce oral
evidence, in accordance with law.
6. I have examined the materials placed before
this Court. It is not in dispute that the accused Atul
Kumar, has adduced his evidence by way of affidavit on
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05th June, 2012, which is not permissible under law. In
view of the judgment of Hon'ble Supreme Court in the
case of MANDVI CO-OPERABIVE BANK (supra), it is just
and proper to remand the case to the trial Court for
disposal in accordance with law. Accordingly, I proceed to
pass the following:
ORDER
i. Appeal is allowed;
ii. Judgment of conviction dated 31st July,
2012 passed in CC No.26858 of 2011 by
the XIV Additional Chief Metropolitan
Magistrate, Bangalore; and the judgment
of acquittal dated 23rd January, 2013
passed in Crl.A.No.25114 of 2012 by the
Additional Sessions Judge & Presiding
Officer, FTC-III, Mayo Hall Unit, Bangalore,
are set aside;
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iii. The case is remanded back to the trial Curt
with a direction to provide opportunity to
the accused to adduce his oral evidence, in
accordance with law;
iv. The trial Court is also directed to provide
an opportunity to the legal representatives
of the complainant to adduce their
evidence, if any. Thereafter, the trial
Court shall dispose the matter in
accordance with law.
v. Both the parties are directed to appear
before the trial Court on 04th December,
2025, without waiting for any notice in this
regard;
vi. As the matter is of the year 2011, the trial
Court shall dispose the case as
expeditiously as possible, and in any
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event, within a period of four months from
the date of appearance of the parties.
vii. Registry to send the copy of this judgment
along with trial Court records, to
concerned Courts.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
