Allowed

Sri Umesh Kumar v. Sri R Venkatesh

Karnataka HC7 Dec 2023CRL.A/2/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an acquittal in a cheque-dishonor case, holding that the trial court erred in accepting witness evidence via affidavit which is impermissible under the N.I. Act and Supreme Court precedents. The judgment was quashed and the case remanded for fresh trial.

What did the court decide?

The judgment of acquittal is set aside. The matter is remitted to the trial court to allow both parties to adduce evidence in accordance with law.

Sri Umesh Kumar Vs Sri R Venkatesh — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.2 OF 2013

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BETWEEN:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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SRI UMESH KUMAR, S/O H. KALAPPA, AGED ABOUT 33 YEARS, R/AT NO. 42/1, BEHIND BRILLIANT PAINTERS, JALAGIRIYAMMA TEMPLE, LOTTEGOLLAHALLI, BANGALORE-560094.

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…APPELLANT

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(BY SRI. PARASHURAM R HATTARAKIHAL., ADV. - ABSENT)

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AND:

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SRI R VENKATESH S/O . RAMAKRISHNAPPA, AGED ABOUT 48 YEARS, R/AT NO.16, 8^TH CROSS, DIWANARAPALYA, GOKULA BADAVANE, MATHIKERE POST, BANGALORE-54

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…RESPONDENT

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(BY SRI. M.KRISHNA MURTHYT., ADV. - ABSENT)

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THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 28.03.2012 PASSED BY THE XIII A.C.M.M., BANGALORE IN C.C.NO.1574/2009 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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

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JUDGMENT

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Case called out. No representation.

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On examination of records, this Court has noticed

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that the Trial Court has received the evidence of accused/respondent by way of affidavit which is not permissible under law. Hence, the case is taken up for final disposal.

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The appellant/complainant has preferred this appeal against the judgment of acquittal dated 28.03.2012 passed in C.C.No.1574/2009 by the Court of XIII Addl. Chief Metropolitan Magistrate, Bangalore. (hereinafter referred to as 'Trial Court').

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The brief facts of the case are that:

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The accused had developed familiarity with the petitioner since 8 years and used to visit the house of the petitioner. The accused is the proprietor of the Jagadamba Travels operating Tours and Travels at Diwanarapalya. Out of the

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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familiarity, the accused had requested the complainant during the 1^st week of May 2008 to arrange hand loan of

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Rs.1,00,000/- for short period of 2 months, so as to improve his business and agreed to repay the same within 2 months along with interest at 3% per month. As the complainant was having close contact with the accused he had arranged for a sum of Rs.77,500/- and lent the said amount on 16.05.2008 and on receipt of the said amount, the accused had issued a post dated cheque on 25.06.2008 bg.No.711767 for Rs.77,500/- drawn on ICICI

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Bank, Malleshwaram Branch, Bangalore as security, by agreeing to repay the said amount at 3% per month. As the days passed the accused requested the complainant to

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wait for repayment till 1^st week of July 2008 with assurance to repay the said amount with interest at 3% per month. Thereafter by giving sufficient time the complainant presented the cheque for encashment by end of June 2008. But on presentation of the cheque came to be dishonored with endorsement dated 05.07.2008. This was intimated to the accused, for which he requested the

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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complainant to re-present the cheque by the end of July 2008. Accordingly, the petitioner was forced to re-present the cheque on 02.08.2008. Once again the cheque came to be dishonored with endorsement as 'insufficient funds' as per the bank endorsement dated 14.08.2008 inspite of dishonour of the cheque, the accused failed to make payment of the agreed interest amount. So the complainant got issued legal notice but the accused managed to sent back the legal notice envelope without acknowledging it. Inspite of intimation of the dishonour of

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the cheque the accused had failed to comply with the legal demand and thereby the accused had committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881. (hereinafter referred to as 'N.I.Act' for short).

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After taking the cognizance of the offence, the case was registered in C.C.No.1574/2009. The summons was issued to the accused. In response to summons, the accused has appeared before the Court and enlarged on

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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bail. The substance of plea was recorded and the accused pleaded not guilty and claims to be tried.

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To prove the case of the complainant, the complainant got himself examined as PW.1 and 7

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documents were marked as Exs.P1 to P7. On closure of complainant's side evidence, statement under Section 313 was recorded. The accused has denied the evidence of PW.1 and adduced his evidence as DW.1 and other witnesses is examined as DW.2. Two documents were got marked as Exs.D1 to D2. On hearing the arguments, the Trial Court has acquitted the accused. Being aggrieved by the judgment of acquittal, the appellant has preferred this appeal.

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Both the counsel remained absent.

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On examination of the materials placed before

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this Court, this Court has noticed that the Trial Court has received the evidence of accused/respondent (DW.1) and DW.2 by way of affidavit which is not permissible under law and also as per the decision of the Hon'ble Apex Court

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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in the case of MANDVI CO-OPERATIVE BANK LIMITED

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v. NIMESH B. THAKORE reported in AIR 2010 SC

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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

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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

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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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 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

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the case of SMT. BHAGYA v. V. SAVITHRAMMA reported in 2013(1) KCCR 834, relying upon the

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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judgment of the Hon'ble Supreme Court in the case of

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MANDVI CO-OPERATIVE BANK LIMITED , at

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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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8. On appreciating the evidence adduced by both

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parties, the Trial Court has acquitted the accused. Since the Trial Court has not complied the mandatory provision of Section 145 of N.I.Act and also the aforesaid decision of the Hon'ble Apex Court, the evidence of DWs.1 and 2 cannot be looked into in accordance with law.

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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Under the given facts and circumstances of the

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case, it is just and proper to remand the matter to the

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Trial Court with a direction to provide an opportunity to the accused to adduce his evidence in accordance with law.

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Accordingly, I proceed to pass the following:

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O R D E R

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Appeal allowed ;

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Judgment of acquittal dated 28.03.2012 passed in C.C.No.1574/2009 by the XIII Addl. Chief Metropolitan Magistrate, Bangalore, 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 evidence in accordance with law;

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The Trial Court is also directed to provide an opportunity to the complainant to adduce his additional evidence, if any;

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The Trial Court is also directed to provide opportunity to both the parties to adduce their further evidence, if any.

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The Trial Court is directed to issue court notice to both the parties to proceed with the case in accordance with law.

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10 -

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NC: 2023:KHC:44831 CRL.A No. 2 of 2013

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The Trial Court is directed to dispose of the case as expeditiously as possible and in any event, within six months from the date of appearance of the parties, as the matter is of the year 2009.

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Registry to send the copy of this judgment along with Trial Court records to the Trial Court without any delay.

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Sd/JUDGE

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SSD

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List No.: 1 Sl No.: 23

Sri Umesh Kumar v. Sri R Venkatesh

Case brief

What is this about?

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Sri Umesh Kumar v. Sri R Venkatesh

Case brief

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