Allowed

D N Manjunatha v. Sri Sathishkumar B a

Karnataka HC4 Dec 2023CRL.A/134/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal against an acquittal in a cheque dishonour case. The single judge held that admitting the accused's affidavit evidence under Section 138 of the Negotiable Instruments Act was illegal. The court set aside the acquittal and remanded the matter for a fresh disposal.

What did the court decide?

Acquittal set aside; matter remitted to the trial court to provide the accused an opportunity to adduce oral evidence in accordance with law.

D N Manjunatha Vs Sri Sathishkumar B a — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:43590 CRL.A No. 134 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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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. 134 OF 2013

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BETWEEN:

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D.N. MANJUNATHA, SON OF SRI. C. NAGARAJ, AGED ABOUT 33 YEARS, RESIDING AT NO.132, 23RD MAIN, II STAGE, J.P. NAGAR, MYSORE.

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…APPELLANT

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(BY SRI. R. KRISHNA MURTHY, 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. SATHISHKUMAR B.A, SON OF SRI. ANANTHARAMU, AGED ABOUT 35 YEARS, RESIDING AT NO.274, 20TH MAIN ROAD, 'D' BLOCK, 2ND STAGE, J.P. NAGAR, MYSORE.

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…RESPONDENT (BY SRI. H.M. MANJESH, ADVOCATE)

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THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 20.10.2012 PASSED BY THE IV ADDL. I C.J. & J.M.F.C., MYSORE IN C.C.NO.972/2009 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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NC: 2023:KHC:43590 CRL.A No. 134 of 2013

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THIS APPEAL, COMING ON FOR ARGUMENTS, 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 IV Additional, I Civil Judge And JMFC, Mysore, in CC.No.972/2009 dated 20.10.2012, (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 and the complainant are good friends. The accused approached the complainant in the month of November 2008 for a loan of Rs.3,00,000/- for his legal necessities and improvement of departmental stores agreeing to repay the same in short period. Accused has issued two cheques bearing No.660189 dated 20.01.2009 and cheque No.660190 dated 29.01.2009 for a sum of Rs.1,50,000/- each drawn on Vijaya Bank, Industrial Suburb Branch, Mysore. When the complainant presented the cheques for encashment through his banker Indian Overseas Bank, J.P.Nagar Branch, Mysore, but to utter shock and

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surprise of the complainant, the cheques bounced with a shara "Funds Insufficient" on 26.02.2009. The complainant got issued legal notice on 07.03.2009 calling upon the accused to pay the cheque amount within 15 days. Though the notice served on the accused, he did not repay the loan amount. Hence, the complainant lodged the complaint.

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After taking cognizance, case was registered in CC.No.972/2009 and summons were issued. In pursuance of summons accused appeared before the trial Court and enlarged on bail. The substance of plea was recorded. The accused pleaded not guilty and claimed to be tried.

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To prove the case of the complaint, complainant himself examined as PW1 and 9 documents were marked as Ex.P1 to Ex.P9. On closure of complainant side evidence statement of the accused under Section 313 of Cr.P.C was recorded. Accused has totally denied the evidence of PW1 and adduced his evidence by way of affidavit as DW1 and 02 documents were marked as Ex.D1 and Ex.D2. On hearing the arguments the trial Court has acquitted the accused. Being

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NC: 2023:KHC:43590 CRL.A No. 134 of 2013

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aggrieved by the impugned judgment of acquittal, the complainant/appellant has preferred this appeal.

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Learned counsel for the appellant has submitted his arguments that the accused/respondent has issued 2 cheques Ex.P1 and Ex.P2 for a sum of Rs.1,50,000/- each to discharge his liability. The same were presented to the bank for encashment on 22.02.2009 which returned with shara 'funds insufficient' as per EX.P3 and Ex.P4 dated 26.02.2009. The legal notice was issued on 07.03.2009 through RPAD and also through certificate of posting. The legal notice issued through RPAD is returned with shara 'door locked'. But with regard to 'certificate of posting', as per Section 27 of General Clauses Act, there is presumption of service of notice to respondent through certificate of posting. The complainant has lodged the complaint under Section 200 of Cr.P.C on 18.04.2009. Accordingly, the complainant has complied all the mandatory provisions of Section 139 of the Negotiable Instruments Act, 1881 and he has discharged his burden as required under the said Section of the Negotiable Instruments Act, 1881. Now, the burden shifts on the accused to rebut the presumption under Section 138 of the Negotiable Instruments Act, 1881. DW1 has

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5 - NC: 2023:KHC:43590 CRL.A No. 134 of 2013

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clearly admitted in his evidence that the cheques in question belongs to him and it bears his signature. But he has taken defence that he has issued blank cheques to the father of the complainant. There is no sufficient legal evidence to rebut the presumption under Section 139 of the Negotiable Instruments Act, 1881. The trial Court has not properly appreciated the evidence on record in accordance with law and facts and also the decisions of the Hon'ble Apex Court. To substantiate his arguments, learned counsel relied on the following decisions:

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M/s.Agency Real Margao Pvt. Limited vs.Subhash K.Parab 2015 Cri.L.J.2336 (Bombay High Court (Goa Bench)

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T.P.Murugan vs.Posa Nandhi (2018)8 SCC 469

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Kishan Rao vs.Shankargowda (2018)8 SCC 165

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T.Vasanthkumar vs.Vijayakumari (2015)8 SCC 389

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As against this, the learned counsel for the respondent has submitted his arguments that the trial Court has properly appreciated the evidence on record in accordance with law and facts. In the absence of evidence of DW1, there are no grounds to interfere with the impugned judgment of

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acquittal. On all these grounds sought for dismissal of the appeal.

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Having heard the arguments and perusal of records, 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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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 before this Court. A perusal of materials placed before this Court, makes it crystal clear that the complainant has proved the essential ingredients of Section 138 of the Negotiable Instruments Act, 1881, except the explanation of provisions of Section 138 of the Act is legally recoverable debt. In this regard, the trial Court has received the evidence of accused by way of affidavit. It is settled principle of law that adducing of evidence by way of affidavit is not permissible. Therefore, the

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evidence of DW1 cannot be looked into. This view of mine is fortified by the decision of Hon'ble Supreme Court in the case of M/s.MANDVI CO-OPERATIVE BANK LIMITED v.

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NIMESH 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 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'

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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 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

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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 CO-OPERATIVE 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 complied the provisions of Section 145 of the said Act, and adducing evidence 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

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looked into. 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 IV Additional I Civil Judge and JMFC, Mysore in CC.No.972/2009, dated 20.10.2012 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

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observed by this Court in the body of the judgment.

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Trial Court is directed to provide an opportunity to the appellant to adduce his evidence, if any.

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Both parties are directed to appear before the trial Court on 21.12.2023, without seeking any further notice from the trial Court in this regard.

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The trial Court is directed to dispose of the case within six months from the date of receipt of certified copy of the judgment and also appearance of both parties, as the matter is of the year 2009 .

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Registry is directed to send a copy of this judgment along with the trial court records to the concerned trial Court forthwith.

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CT: BHK

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Sd/JUDGE

D N Manjunatha v. Sri Sathishkumar B a

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D N Manjunatha v. Sri Sathishkumar B a

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