Allowed

Siddegowda M v. R Somashekara

Karnataka HC12 Dec 2023CRL.A/1005/2013

Case brief

AI extract

What is this about?

Karnataka HC allowed a Criminal Appeal challenging an acquittal in a cheque bounce case. The High Court set aside the acquittal because the trial court impermissibly admitted affidavit evidence from the accused under Section 145 N.I. Act and wrongly ignored the complainant's financial capacity. The matter was remanded.

What did the court decide?

Appeal allowed; acquittal set aside; matter remanded to trial court for recording evidence in accordance with law on Section 145 N.I. Act and examining financial capacity.

Siddegowda M Vs R Somashekara — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 1005 OF 2013

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BETWEEN:

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SIDDEGOWDA M., S/O MANCHEGOWDA, AGED ABOUT 42 YEARS, R/A NO.495, KOORGALLI, BELAVADI POST, YELAWALA HOBLI, MYSORE TALUK - 571 130.

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…APPELLANT (BY SRI. P.NATARAJU, ADVOCATE)

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AND:

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Digitally signed by GAYATHRI P G Location: High Court of Karnataka

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R. SOMASHEKARA, S/O RAMASWAMY NAIDU, AGED ABOUT 43 YEARS, C/O BOREGOWDA, GRAMA PANCHAYATH MEMBER, D.NO.461, NEAR BEERAIAHNA GUDI, BELAVADI, YELAWALA HOBLI, MYSORE TALUK - 571 130.

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WORKING PLACE ADDRESS: R. SOMASHEKARA, TRITAN VALVES LTD., PRODUCTION DEPT., I.D. NO.330, BELAVADI INDUSTRIAL AREA, HUNSUR ROAD, MYSORE - 570 018.

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…RESPONDENT

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(RESPONDENT SERVED AND UNREPRESENTED)

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THIS CRL.A IS FILED U/S 378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 13.08.2013 PASSED BY THE III ADDL. I CIVIL JUDGE & JMFC, MYSORE IN C.C.NO.498/2010 -

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NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT. THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant/complainant has preferred this appeal

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against the judgment of acquittal passed by the III Addl. I Civil Judge & JMFC, Mysore in C.C.No.498/2010 dated 13.08.2013.

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The rank of the parties in this appeal are

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referred in the same rank as referred by the trial Court.

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3. Brief facts of the complaint are that:

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The accused had borrowed a loan of Rs.2,00,000/-

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from the complainant. Towards discharge of the said loan, accused had issued a cheque for Rs.2,00,000/- and the said cheque dated 17.07.2009, on presentation, was returned with an endorsement 'insufficient funds'. Complainant then issued a notice to the accused to pay the cheque amount. However, even after service of the said notice, accused did not repay the cheque amount.

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3 - NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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Hence, the complainant lodged a complaint for the commission of offence punishable under Section 138 of N.I. Act.

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After taking cognizance, the trial Court registered a case in C.C.No.498/2010 against the accused and issued summons to the accused. In response to the summons, accused appeared before the trial Court and was enlarged on bail. Substance of the plea was recorded. Accused pleaded not guilty and claimed to be tried.

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To prove the case of the complainant, complainant got himself examined as PW.1 and marked 9 documents as Exs.P1 to P9. On closure of complainant's side evidence, statement of accused under Section 313 of Cr.P.C. was recorded. Accused had denied the evidence of PW.1 and adduce his evidence by way of affidavit as DW.1 but no document was recorded on his behalf. On hearing the arguments, the trial Court acquitted the accused. Being aggrieved the same, the appellant/complainant has preferred the present appeal.

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NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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Learned counsel for the complainant has submitted his arguments that the trial Court has not properly appreciated the evidence on record in accordance with law and facts. The trial Court has ignored the provisions of Section 139 of N.I. Act. Though the accused had not sent any reply notice, the trial Court has held that the complainant had no financial capacity to lend the loan amount of Rs.2,00,000/- to the accused. This is contrary to the decision of the Hon'ble Apex Court. The trial Court has also committed an error in receiving the evidence of DW.1 by way of evidence, which is not permissible under

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the provisions of Section 145 of N.I. Act. Further, he submits that if this Court provide an opportunity to adduce his evidence as to the financial capacity, the complainant will produce relevant evidence before the trial Court. On these grounds, he sought to remand the matter to the trial Court for disposal in accordance with law.

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Despite service of notice to the respondent/accused, he remained absent. Hence, respondent/accused side arguments is taken as nil.

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5 - NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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Having heard the arguments of learned counsel

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for the appellant and on perusal of records, following

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points would arise for my consideration:

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Whether the appellant/complainant has made

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out any grounds to remand the matter to the trial Court for disposal in accordance with law?

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What order?

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My answer to the above points is as under:

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Point No.1 : In the 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 examined the materials placed before

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this Court. Complainant filed a complaint under Section 200 of Cr.P.C. for dishonour of cheque for Rs.2,00,000/-. To prove the case of the complainant, complainantSiddegowda was examined as PW.1 and marked nine documents as Exs.P1 to P9. Thereafter, trial Court has received the evidence of DW.1 by way of affidavit, which is not permissible under the provisions of Section 145 of N.I.

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6 - NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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Act. In this regard, I relied upon the 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 , wherein, paragraphs 31 and 32, read 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 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

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NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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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 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."

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On examination of the aforesaid decision along

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with the provisions of Section 145 of N.I. Act, it is clear that the trial Court has not followed the provisions of

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8 - NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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Section 145 of N.I. Act. The evidence of accused by way of affidavit is not permissible under law. Relying on the evidence of DW.1 and also non-production of materials as to the financial capacity of the complainant, the trial Court has acquitted the accused. Since the accused has not adduced his evidence in accordance with law, the same cannot be looked into by this Court. Hence, it is just and proper to remit the matter to the trial Court with a direction to provide an opportunity to the accused to adduce his evidence in accordance with law and in view of the opinion expressed by the trial Court, it is also necessary to provide an opportunity to the complainant to adduce his further evidence to prove his case. Accordingly, the complainant has made out grounds to remand the matter to the trial Court. Hence, I answer point No.1 in 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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NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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ORDER

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The appeal is allowed ;

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The impugned judgment of acquittal dated 13.08.2013 passed by the III Addl. I Civil Judge & JMFC, Mysore in C.C.No.498/2010 is hereby set aside;

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The matter is remitted back to the trial Court with a direction to provide an opportunity to the complainant to adduce his further evidence, both oral and documentary evidence;

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The trial Court is also directed to provide an opportunity to the accused to adduce his evidence in accordance with law;

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The complainant is directed to appear before the trial Court on 17.01.2024 without seeking any further notice from the trial Court;

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The trial Court is directed to secure the presence of the accused and proceed with the matter in accordance with law

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10 - NC: 2023:KHC:45091 CRL.A No. 1005 of 2013

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The trial Court is directed to dispose of the matter within a period of six months from the date of appearance of the accused as the matter is of the year 2010;

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Registry is directed to send a copy of this judgment along with trial Court records to the concerned trial Court without causing any delay.

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Sd/JUDGE

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PGG CT: BHK

Siddegowda M v. R Somashekara

Case brief

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Siddegowda M v. R Somashekara

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