Allowed

Sri Lakkegowda v. Sri. H. Srinivas

Karnataka HC4 Dec 2023CRL.A/100/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the acquittal of an accused in a cheque dishonour case. The Court held that the trial court erred in accepting affidavit evidence from the accused under Section 145 of the Negotiable Instruments Act, 1881, without following statutory procedure. Consequently, the judgment was set aside and the matter remitted for disposal afresh.

What did the court decide?

Appeal allowed; judgment of acquittal set aside; matter remitted to trial Court to provide opportunity for oral evidence to both parties; disposal within six months.

Sri Lakkegowda Vs Sri. H. Srinivas — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:43634 CRL.A No. 100 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL APPEAL NO. 100 OF 2014

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BETWEEN:

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SRI. LAKKEGOWDA, S/O SRI. MARIGOWDA, AGED ABOUT 60 YEARS, NO.52/1, 25TH MAIN ROAD, GIRINAGAR, BANGALORE - 560 085.

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…APPELLANT

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(BY SRI. M. ASWATHANARAYANA REDDY, ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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SRI. H. SRINIVAS, S/O LATE HANUMANTHAPPA, HINDU, MAJOR IN AGE, RESIDING AT NO.24, 'LAKSHMI NILAYA', ANJANEYASWAMY ROAD, AVALAHALLI, G.E.F POST, MYSORE ROAD, BANGALORE - 560 026. …RESPONDENT (BY SRI. M. SUBRAMANI, ADVOCATE) THIS CRL.A IS FILED U/S. 378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:21.12.13 PASSED BY THE XII ADDL.C.M.M., BANGALORE IN C.C.NO.11497/2007 - ACQUTTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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NC: 2023:KHC:43634 CRL.A No. 100 of 2014

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The complainant/appellant has preferred this appeal against the judgment of acquittal passed by the XII Additional Chief Metropolitan Magistrate, Bangalore, in CC.No.11497/2007 dated 21.12.2013, (for short hereinafter referred to as "trial Court").

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The rank of the parties in this appeal are referred to as per their status before the trial Court.

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The brief facts of the complaint is that the accused has borrowed a sum of Rs.2,00,000/- from the complainant to discharge Bank loan amount under the O.T.S, Scheme amount within one month. The accused has informed the complainant that his wife has got a vacant site at Avalahalli Village, Uttarahalli Hobli, Bangalore North Taluk and she wanted to dispose of the same as she required amount of Rs.2,00,000/urgently. Therefore, she induced the complainant to purchase the site from her that on 02.08.2004 the complainant had paid a sum of Rs.2,00,000/- by way of cash to the wife of accused

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wife towards sale consideration. In order to purchase the said site he had entered into an agreement to sell the site with his wife. He has executed a general power of attorney and affidavit on the same day for having sold the said site. When the complainant went to the spot in order to put up a shed then only he has realized that the father of the accused has already sold the said site in favour of the third parties before his death. Therefore, the complainant had informed the said fact and demanded the payment at that time the accused has issued the cheque for Rs.3,00,000/- as full and final settlement towards the aforesaid transaction. When the said cheque was presented on 10.01.2007 it was dishonoured with shara that "Account Closed". Therefore, complainant has caused a legal notice under Section 138 of the Negotiable Instruments Act, 1881. Calling upon the accused to pay the cheque amount. Accused has received the notice but gave an untenable reply. Therefore, the complainant had lodged a complaint under Section 313 of Cr.P.C. After taking cognizance against the accused for the commission of offence under Section 138 of the Negotiable Instruments Act, 1881. Case was registered in CC.No.11497/2007 and summons was issued to the accused, in

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pursuance of summons accused appeared before the trial Court and substance of accusation was recorded. Accused pleaded not guilty and claimed to be tried.

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To prove the case of the complaint, complainant examined as PW1, 14 documents were marked as Ex.P1 to Ex.P14. On closure of complaint side evidence, statement of the accused under Section 313 of Cr.P.C was recorded. The accused has totally denied the evidence of PW1 and he has adduced his evidence as DW1 and DW2 by way of affidavit, instead of examination-in-chief and 7 documents were marked as Ex.D1 to Ex.D7.

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On hearing the arguments on both sides the trial Court has acquitted the accused. Being aggrieved by the judgment of acquittal, the complainant/appellant has preferred this appeal.

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Learned counsel appearing on behalf of the appellant has submitted his argument that the trial Court has not properly appreciated the evidence on record in accordance with law. The trial Court has received the evidence of DW1 and DW2 by way of affidavit, which is not permissible under law.

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Trial Court has also ignored the provisions of Section 138 of Negotiable Instruments Act, 1881. On all these grounds sought to allow this appeal.

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As against this the learned counsel appearing on behalf on the respondent has submitted his argument that the trial Court has properly appreciated the evidence on record in accordance with law and facts. That there are no grounds to interfere with the impugned judgment of acquittal. On all these grounds sought for dismissal of this appeal.

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Having heard the arguments and perusal of records,

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the following points would arise for the consideration:

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1. Whether the appellant/complainant has made out a ground to interfere with impugned judgment of acquittal.

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1. What order?

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My answer to the above points are as under:

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Point No.(1) : Affirmative,

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Point No.(2) : As per final order.

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Regarding Point No.1:

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I have carefully examined the materials placed

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before this Court. To prove the guilt of the accused/ complainant Lakkegowda examined as PW1, 14 documents were marked as Ex.P1 to Ex.P14. On closure of complainant side evidence Sri.H.Srinivasa the accused has adduced his evidence as DW1 by way of affidavit. DW2-K.Sumathi who is the wife of DW1, has also adduced her evidence by way of affidavit, which is not permissible under Section 145(2) of the Negotiable Instruments Act, 1881. In this regard, it is useful to refer to the decision of Hon'ble Supreme Court in the case of

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M/s.MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH

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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:

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" 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.

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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

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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 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

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defence evidence with the complainant's evidence and to extend the same option to the accused as well. "

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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 COOPERATIVE BANK LIMITED (supra) , at paragraph 11 of the judgment, has observed as under:

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" 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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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 adducing by way of affidavit is not permissible in law. Relying on the affidavit evidence, 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 judgment passed by 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. Accordingly, I answer point No.1 in the affirmative.

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Regarding Point No.2:

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For the aforesaid reasons and discussions, I proceed to pass the following:

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ORDER

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The appeal is allowed .

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The judgment of acquittal passed by XII Additional Chief Metropolitan Magistrate, Bangalore in CC.No.11497/2007, dated 21.12.2013 is set-aside.

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The matter is remitted back to the trial Court with a direction to provide an opportunity to the accused to adduce his oral evidence in accordance with law and also as per the judgment of the Hon'ble Apex Court as observed by this Court in the body of the judgment.

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