Allowed

Sri Sudhakar v. Sri M S Prakash

Karnataka HC29 Nov 2023CRL.A/392/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal against an acquittal in a cheque dishonour case. It set aside the acquittal and remanded the matter to the trial court, directing the accused to be given an opportunity to adduce oral evidence instead of relying on impermissible affidavits.

What did the court decide?

The appeal is allowed; impugned orders set aside; matter remanded to trial court to provide accused an opportunity to adduce oral evidence.

Sri Sudhakar Vs Sri M S Prakash — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:43079 CRL.A No. 392 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL APPEAL NO. 392 OF 2013

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BETWEEN:

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SRI SUDHAKAR, AGED ABOUT YEARS, S/O SRI KEMPARAJ, R/AT NO.18/1, SHAMANNA GOWDA LAYOUT, JOGUPALAYA, ULSOOR, BANGALORE-560 008.

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…APPELLANT

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(BY SRI. C.PATTABI RAMAN, 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 M.S.PRAKASH, S/O SRI M.A.SWAMY, AGED ABOUT 46 YEARS, R/AT NO.15/38, I 'A' CROSS, JEEVANKENDRA LAYOUT, CAMBRIDGE ROAD, BANGALORE-560 008.

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…RESPONDENT (BY SRI. V.PRABHAKAR, ADVOCATE [ABSENT]) THIS CRL.A. FILED U/S 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 24.07.2012 PASSED BY THE ADDITIONAL SESSIONS JUDGE AND P.O., FTC.III MAYO HALL, BANGALORE IN CRL.A.NO.25086/2011 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND CONFIRM THE JUDGMENT AND ORDER DATED 20.04.2011 PASSED BY THE XIV ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE IN C.C.NO.60954/2009.

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

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2 - NC: 2023:KHC:43079 CRL.A No. 392 of 2013

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JUDGMENT

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The appellant/complainant has preferred this appeal against the judgment of acquittal passed by the Appellate Court in Crl.A.No.25086/2011 dated 24.07.2012 on the file of Additional Sessions Judge and P.O., FTC.III Mayo Hall Unit, Bangalore.

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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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Brief facts of the complaint are that the accused approached the complainant on 01.12.2007 and received hand loan of Rs.7,00,000/- for emergency needs. He has assured to return the said amount within six months. The complainant requested one of his friends who had money for his building construction and assured him to return the same. On the same day, the accused executed a Demand Promissory Note for an amount of Rs.7,00,000/-. Subsequently, the complainant approached the accused in the month of July 2008 and requested him to repay the amount. On 05.12.2008, the accused issued a cheque

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bearing No.682892 dated 21.02.2009 for a sum of Rs.5,00,000/-, drawn on Bhayasarex Kshatrive Cooperative Bank Ltd., Cantonment Branch, Bangalore and assured him to give cash of Rs.2,00,000 on 15.12.2008. The complainant approached the accused for Rs.2,00,000 on 15.12.2008, but the accused, issued another cheque, bearing No.695971 dated 15.12.2008 for Rs.2,00,000 drawn on the same bank. The complainant presented both the cheques through ING. Vysya Bank Ltd. Car Street, Ulsoor, Bangalore, but it was dishonoured for the reason "Funds Insufficient" in the account of the accused. Afterwards, the complainant issued a legal notice through RPAD and UCP calling upon him to pay the cheque amount within 15 days from the date of receipt of the notice. After receiving the notice, the accused neither replied nor paid the cheque amount. The accused issued the cheques with an assurance that it will be honoured on presentation, after borrowing the hand loan of Rs.7,00,000. But, he failed to keep the sufficient amount in his account. Hence,

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NC: 2023:KHC:43079 CRL.A No. 392 of 2013

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the complainant lodged a complaint under Section 138 of N.I. Act.

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After taking cognizance, a case was registered in C.C.No.60954/2009 and summons was issued to the accused. In response to the summons, accused appeared before the trial Court and pleaded not guilty. To prove the guilt of the accused, the complainant examined himself as PW.1 and another witness as PW.2 and 11 documents got marked as Exs.P1 to P11. On closure of complainant's side evidence, statement of the accused under Section 313 of Cr.P.C. was recorded. Accused had denied the evidence of PWs.1 and 2 and adduced his oral evidence as DW.1 and examined another witness on his behalf as DW.2 and got marked four documents as Exs.D1 to D4. On hearing the arguments of both sides, the trial Court convicted the accused for the commission of offence punishable under Section 138 of N.I. Act and sentenced to pay a fine of Rs.8,00,000/-, in default to undergo simple imprisonment for two years.

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5 - NC: 2023:KHC:43079 CRL.A No. 392 of 2013

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Being aggrieved by the judgment of conviction and order of sentence, the accused preferred an appeal before Additional Sessions Judge and P.O., FTC.III Mayo Hall Unit, Bangalore in Crl.A.No.25086/2011. The said appeal was allowed by the Appellate Court on 24.07.2012 and by setting aside the judgment of conviction and order of sentence acquitted the accused. Being aggrieved by the impugned judgment of acquittal passed by the Appellate Court, the complainant has preferred this appeal.

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Learned counsel for the complainant/appellant has submitted his arguments that the Appellate Court has not properly appreciated the materials on record in accordance with law and facts. The trial Court has received the evidence of DWs.1 and 2 by way of affidavits, which is not permissible under law. On all these grounds, he sought to allow this appeal.

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Respondent has remained absent. No

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representation is made on behalf of the respondent. Hence, respondent's side arguments is taken as nil.

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6 - NC: 2023:KHC:43079 CRL.A No. 392 of 2013

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8. Having heard the arguments of learned counsel

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for the complainant/appellant, following points would arise for my consideration:

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Whether the complainant/appellant has made out any ground to interfere with the impugned judgment of acquittal passed by the Appellate Court?

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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 carefully examined the materials placed

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before this Court. To prove the case of complainant, complainant examined himself as PW.1 and another witness Sri.R.subramani as PW.2 and got marked 11 documents as Exs.P1 to P11. On closure of complainant's side evidence, statement of the accused under Section 313 of Cr.P.C. was recorded. Accused had denied the evidence

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NC: 2023:KHC:43079 CRL.A No. 392 of 2013

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of PWs.1 and 2 and adduced his oral evidence as DW.1 and examined another witness Smt. Chandrakala on his behalf as DW.2 by way of affidavits, which are not permissible under law. In this regard, he has relied on the judgment of the Apex Court in the case of M/S. MANDVI

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CO-OPERATIVE BANK LIMITED v. NIMESH B.THAKORE

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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

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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 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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9 - NC: 2023:KHC:43079 CRL.A No. 392 of 2013

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Accordingly, the complainant/appellant has made out

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a ground to remand the matter to the trial Court with a direction to provide an opportunity to the accused to adduce their oral evidence. Hence, 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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i. The appeal is allowed ;

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ii. The impugned judgment of acquittal passed by the Appellate Court in Crl.A.No.25086/2011 dated 24.07.2012 on the file of Additional Sessions Judge and P.O., FTC.III Mayo Hall Unit, Bangalore and the impugned judgment passed in C.C.No.60954/2009 dated 20.04.2011 on the file of XIV Addl. Chief Metropolitan Magistrate, Bangalore are hereby set aside;

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iii. The matter is remanded back to the trial Court

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with a direction to provide an opportunity to the accused to adduce their oral evidence in accordance with law;

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10 -

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NC: 2023:KHC:43079 CRL.A No. 392 of 2013

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iv. The trial Court is also directed to provide an opportunity to the complainant/appellant to adduce their additional evidence, if any;

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v. The appellant is directed to appear before the trial Court on 20.12.2023 without seeking any further notice from the trial Court;

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vi. The trial Court is directed to secure the accused in accordance with law and proceed with the case;

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vii. The trial Court is directed to dispose of the case within a period of six months from the date of appearance of the accused;

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viii. Registry to send a copy of this judgment along with trial Court records to the concerned trial Court.

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Sd/JUDGE

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PGG

Sri Sudhakar v. Sri M S Prakash

Case brief

What is this about?

What did the court decide?

Sri Sudhakar v. Sri M S Prakash

Case brief

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