Partly allowed

N Munireddy v. Smt R Premavathi

Karnataka HC11 Dec 2023CRL.A/118/2014

Case brief

AI extract

What is this about?

In an appeal against acquittal in a cheque dishonour case, the High Court held that admitting the accused's evidence by affidavit was impermissible under Section 145 of the Negotiable Instruments Act. Relying on Supreme Court precedent, the Court set aside the acquittal and remanded the matter for a proper trial with oral testimony.

What did the court decide?

The judgment of acquittal was set aside, the case restored to file, and remanded to the trial court with a direction to provide an opportunity to the accused to adduce oral evidence.

N Munireddy Vs Smt R Premavathi — Cheque Dishonour | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:44845 CRL.A No. 118 of 2014

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF DECEMBER, 2023 BEFORE

¶4

THE HON'BLE MR JUSTICE G BASAVARAJA

¶5

CRIMINAL APPEAL NO. 118 OF 2014 (A)

¶6

BETWEEN:

¶7

N MUNIREDDY S/O NAGAPPA REDDY, AGED ABOUT 57 YEARS, R/AT NO.502, VRR APARTMENTS, ADJACENT TO DODDANEKUNDI BANGALORE-560 037.

¶8

…APPELLANT

¶9

(BY SRI. A KUMARAVEL, ADVOCATE)

¶10

AND:

¶11

Digitally signed by SANDHYA S Location: High Court of Karnataka

¶12

SMT. R. PREMAVATHI W/O N.KODANDARAMA REDDY, AGED ABOUT 46 YEARS, R/AT NO.259, (OLD NO.249), 14^TH CROSS, 1^ST MAIN ROAD, DODDANEKKUNDI, BANGALORE-560 037.

¶13

…RESPONDENT

¶14

THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED 6.1.2014 PASSED BY THE XIV A.C.M.M., BANGALORE IN C.C.NO.26320/2011 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

¶15

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

¶16

¶17

NC: 2023:KHC:44845 CRL.A No. 118 of 2014

¶18

JUDGMENT

¶19

The complainant/appellant has preferred this appeal against the judgment of acquittal dated 6^th January, 2014 passed in C.C.No.26320/2011 by the XIV Additional Chief Metropolitan Magistrate, Bengaluru (for brevity, hereinafter referred to as the "Trial Court").

¶20

For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Trial Court.

¶21

Brief facts of the complaint is that, the accused being sister-in-law of the complainant has requested to put up residential construction at his costs and expenses in the property of the accused bearing Sy.No.102, situated at Kaveriyappa Layout, Bangalore East Taluk, Bangalore agreeing to repay the entire construction costs and expenses to the complainant after completing the same, accordingly, the complainant has constructed the residential building in the said property during the month of February, 2008, afterwards, when the complainant demanded for a total construction cost for a

¶22

3 - NC: 2023:KHC:44845 CRL.A No. 118 of 2014

¶23

sum of Rs.40 lakhs, accused requested the complainant to let out the said construction building on rent to any tenants towards interest for the costs and construction, finally the accused had issued an account payee cheque bearing No.249410 dated 16.07.2010 for Rs.40,00,000/- drawn on Canara Bank, Marathahalli Branch, Bengaluru with an assurance that it would be honoured on presentation. Further, it is averred that when the complainant presented for encashment, it was came to be returned on 14.08.2010 with an endorsement "funds insufficient". Accordingly, the complainant got issued a legal notice dated 25.08.2010 through RPAD and UCP, the notice sent through RPAD was served upon the accused, but though the accused replied to the notice, she has not paid any cheque amount. Thus the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. After taking cognizance against the accused, the case was registered in C.C.No.26320/2011 and summons were issued. Pursuant of issuance of summons, the accused appeared before the trial Court and got enlarged on bail. Plea for the offence under Section 138 of NI Act was

¶24

4 - NC: 2023:KHC:44845 CRL.A No. 118 of 2014

¶25

recorded and the accused has pleaded not guilty and claimed to be tried.

¶26

To prove the case, the complainant got himself examined as PW.1 and marked 32 documents as Exhibits P1 to P32. On closure of complainant's side evidence, statement under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the evidence of PW.1 and adduced his evidence as DW.1 by way of affidavit and got marked 33 documents as Exhibits D1 to D33. Upon hearing the arguments, the trial Court has acquitted the accused for the offence punishable under Section 138 of the N.I.Act. Being aggrieved by the impugned judgment of acquittal, the present appeal is preferred by the complainant/appellant.

¶27

The appellant's counsel remained absent despite

¶28

sufficient opportunity. Respondent served and unrepresented. Hence, arguments on both sides taken as nil.

¶29

I have perused the material on record. It is noticed that the trial Court has received the evidence of DW.1 by way of affidavit, which is not permissible under law. In this regard,

¶30

5 - NC: 2023:KHC:44845 CRL.A No. 118 of 2014

¶31

I rely on the decision of the Hon'ble Apex Court in the case of MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH B. THAKORE reported in (2010)3 SCC 83 at paragraph Nos.31 and 32. The Hon'ble Apex Court, has held as under:

¶32

"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.

¶33

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 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

¶34

6 - NC: 2023:KHC:44845 CRL.A No. 118 of 2014

¶35

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."

¶36

7. On examination of the aforesaid decisions along

¶37

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 the evidence of accused by way of affidavit is not permissible in law. Relying on the evidence of accused DW.1, along with the other materials, the trial Court has acquitted the accused. Since the accused had not adduced his evidence in accordance with law,

¶38

¶39

NC: 2023:KHC:44845 CRL.A No. 118 of 2014

¶40

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 opportunity to the accused to adduce his evidence in accordance with law. Hence, I proceed to pass the following:

¶41

ORDER

¶42

Appeal allowed;

¶43

Judgment of acquittal dated 6^th January, 2014 passed in C.C.No.26320/2011 by the XIV Additional Chief Metropolitan Magistrate, Bengaluru, is set aside and the case is restored to file;

¶44

Matter is remitted bank to the trial Court with a direction to proved an opportunity to the accused to adduce his oral evidence, in accordance with law and also as per the judgments of Hon'ble Supreme Court as observed by this Court in the body of the judgment;

¶45

The trial Court is also directed to secure the parties and after presence of both the parties, the trial Court shall dispose of the case, in accordance with law.

¶46

NC: 2023:KHC:44845 CRL.A No. 118 of 2014

¶47

¶48

Registry to send the copy of the judgment along with the trial Court record to the trial Court, without any delay.

¶49

Sd/JUDGE

¶50

KG List No.: 1 Sl No.: 13

N Munireddy v. Smt R Premavathi

Case brief

What is this about?

What did the court decide?

N Munireddy v. Smt R Premavathi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Abdul Hameed Vs Sri Mohammad Asif

Smt S Geetha Prakash Vs Smt S Indira

Sri V.Y. Ganesh Vs P.R. Chandrashekar

Sri M C Shivappa Vs Sri Udaya Kumar Shetty

The State by the Coastal Security Police Station Vs Althaf @ Altha

Sri S Kumar Vs Sri Shanmugam