Allowed

Smt v. Sashikala v Sri. K. M. Giri, (K.Mudalagiri)

Karnataka HC6 Dec 2023CRL.A/204/2014

Case brief

AI extract

What is this about?

High Court allowed an appeal against a criminal acquittal. The court held that the trial court committed a legal error by accepting the accused's evidence via affidavit, which is impermissible under Section 145 of the Negotiable Instruments Act. The acquittal was set aside, and the matter was remanded.

What did the court decide?

Judgment of acquittal set aside; Matter remitted to trial court for disposal afresh after giving both parties an opportunity to adduce evidence in accordance with law.

Smt v Sashikala Vs Sri. K. M. Giri, (K.Mudalagiri) — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:44148 CRL.A No. 204 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 204 OF 2014 (A)

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BETWEEN:

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SMT. V. SASHIKALA, AGED ABOUT 47 YEARS, W/O SRI. VENKATESHA RAO, RESIDING AT NO.94 (OLD NO.92) PIPELINE, 6TH CROSS ROAD, 1ST MAIN ROAD, KASTURIBA NAGAR, BANGALORE - 560 026.

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…APPELLANT

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(BY SRI. M.D. ALAVANDAR, 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. K. M. GIRI, (K.MUDALAGIRI) AGED ABOUT 57 YEARS, SON OF LATE KEMPAIAH, RESIDING AT NO.1310, 3RD CROSS, 17TH MAIN, MUNESHWARA BLOCK, BANGALORE - 560 026.

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…RESPONDENT

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(BY SRI. K.N. DAYALU, ADVOCATE)

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THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 17.1.2014 PASSED BY THE XII A.C.M.M., BANGALORE IN C.C.NO.2677/2007 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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NC: 2023:KHC:44148 CRL.A No. 204 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 in CC.No.2677/2007 dated 17.01.2014 on the file of the XII Additional Chief Metropolitan Magistrate Bangalore, (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 respondent was working in P & T Department during September 2005. The appellant/complainant knows the respondent/accused from 10 years. Respondent/accused took a hand loan of Rs.2,00,000/- from the appellant on the plea that he needed the money immediately to secure a job for his son in the Police Department. Purporting to be towards refund of the said amount the respondent issued to the appellant a post dated cheque of Rs.2,00,000/- bearing No.345233 dated 22.07.2006 drawn on Canara Bank, Girinagar Branch,

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Bangalore, with an assurance that the said cheque could be positively honoured on the presentation on the date mentioned in the said cheque. On 22.07.2006 the appellant presented the said cheque for collection through her Banker Canara Bank, Kalidasa Layout Branch, Bangalore and the same was returned dishonoured with an endorsement 'Stop Payment'. When the appellant brought the said fact to the notice of the respondent, the respondent requested the appellant to present the said cheque after Ganesha festival i.e., after August, 2006. Conceding the request of the respondent, appellant represented the said cheque on 05.09.2006 through her Banker for collection and again cheque was returned dishonoured with an endorsement 'Stop Payment'. Thereafter, the complainant has issued a legal notice to the respondent on 23.09.2006 demanding payment of the cheque amount. The accused had sent a frivolous and untenable reply. Hence, complainant had lodged a complaint under Section 138 of the Negotiable Instruments Act, 1881.

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After taking cognizance against the accused for the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881, a case was registered

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against the accused in CC.No.2677/2007. Summons was issued to the accused. In response to summons, accused appeared before the trial Court and enlarged on bail. Substance of plea was recorded, accused pleaded not guilty and claimed to be tried.

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To prove the case of the complainant, two witnesses were examined as PW1 and PW2 and 08 documents were marked as Ex.P1 to Ex.P8. On closure of complainant's side evidence, the statement of the accused under Section 313 of Cr.P.C was recorded. Accused has totally denied the evidence of PW1 and PW2 and adduced his evidence by way of affidavit as DW1. The oral evidence of DW2 and DW3 also adduced and 26 documents were marked as Ex.D1 to Ex.D26. On hearing the arguments, the trial Court has acquitted the accused. Being aggrieved by the impugned judgment of acquittal, complainant/appellant has preferred this appeal.

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Learned counsel appearing on behalf of the appellant 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 received the evidence of

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NC: 2023:KHC:44148 CRL.A No. 204 of 2014

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DW1 by way of affidavit which is not permissible under Section 145 of the Negotiable Instruments Act, 1881 and sought for remand this case to the trial Court for disposal in accordance with law.

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As against this, the learned counsel for the respondent/accused has submitted his arguments that the trial Court has properly appreciated the evidence on record in accordance with law and facts. Even without the evidence of DW1, there are sufficient materials to acquit the accused that there is no need to remand the case and sought for dismissal of the appeal.

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To substantiate his evidence, he relied on the decisions of in the case of K.SUBRAMANI Vs. K. DAMODHARA NAIDU reported in 2015 CRI.L.J 912 SCC ; VEERAYYA Vs. G.K.MADIVALAR reported in 2012(3) KCCR 2027 .

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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

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ground to remand the matter to the trial Court for disposal in accordance with law?

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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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I have carefully examined the materials placed before this Court. The complainant/appellant has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. To prove the case of the complainant, two witnesses were examined as PW1 and PW2 and 08 documents were marked as Ex.P1 to Ex.P8. The accused has adduced his evidence by way of affidavit as DW1, which is not permissible under Section 145 of the Negotiable Instruments Act, 1881. In this regard, it is relevant to refer to the dictum of Hon'ble Supreme Court in the case of M/s.MANDVI CO-OPERATIVE BANK LIMITED v. 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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NC: 2023:KHC:44148 CRL.A No. 204 of 2014

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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' 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

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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 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

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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 the evidence of the accused by way of affidavit is not permissible in law. Relying on the evidence of DW1 and DW2 and other materials, the trial Court has 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 the 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.

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In the case on hand relying on the evidence of DW1 along with the documents produced by the respondent and also considering the evidence of PW1 in the cross examination, the trial Court has passed this impugned judgment of acquittal. Since, the accused has adduced his evidence by way of affidavit, the said evidence cannot be looked into, in view of the aforesaid decision and also the provisions of Section 145 of the Negotiable Instruments Act, 1881. Therefore, without expressing any opinion on the merits of the case, it is necessary to remand the case to the trial Court with a direction to provide an opportunity to the accused to adduce his evidence in accordance with law. 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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O R D E R

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1. Appeal is allowed .

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11 -

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NC: 2023:KHC:44148 CRL.A No. 204 of 2014

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Judgment of acquittal dated 17.01.2014 passed by the XII Additional Chief Metropolitan Magistrate in CC.No.2677/2007, is set aside;

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The matter is remitted back to the trial Court with a direction to give an opportunity to both parties to adduce their evidence, if any;

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Both the parties are directed to appear before the trial Court on 18.01.2024 , without waiting for notice from the trial Court in this regard;

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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 2007.

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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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CT: BHK

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Smt v. Sashikala v Sri. K. M. Giri, (K.Mudalagiri)

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Smt v. Sashikala v Sri. K. M. Giri, (K.Mudalagiri)

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