Allowed

Srinivas N v. Srinivasalu J

Karnataka HC19 Dec 2023CRL.A/421/2015

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an acquittal in a cheque dishonour case. It set aside the acquittal because the trial Court improperly accepted the accused's evidence via affidavit, violating Section 145 of the Negotiable Instruments Act, 1881, as established by Supreme Court and coordinate bench precedents. The matter was remanded for a fresh trial.

What did the court decide?

The acquittal was set aside; the case was remanded to the trial Court to afford the accused an opportunity to adduce evidence in accordance with law.

Srinivas N Vs Srinivasalu J — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:46293 CRL.A No. 421 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^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. 421 OF 2015

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BETWEEN:

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SRINIVAS N, AGED ABOUT 48 YEARS, S/O LATE NARASIMHA REDDY, R/O NO.38/1, 1ST CROSS, OBALAPPA GARDEN, TATA SILK FARM, BENGALURU - 560 070.

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…APPELLANT

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(BY SRI. CHIDAMBARA G.S, ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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SRINIVASALU J, SIRI MEADOWS, R/O NO.53, SIRI HOME, 5TH FLOOR, NO.504, VASANTH VALLABHA NAGAR, 2ND BLOCK, SUBRAMANYAPURA POST, BENGALURU - 560 061.

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…RESPONDENT

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(BY SRI. CHENNA KRISHNA S, ADVOCATE (ABSENT))

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THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:7.2.2015, PASSED BY THE COURT OF XXIII ACMM, BENGALURU, IN C.C.NO.27032/10 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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NC: 2023:KHC:46293 CRL.A No. 421 of 2015

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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 appellant/complainant has preferred this appeal against the judgment of acquittal passed by the XXIII Additional Chief Metropolitan Magistrate, Nrupathunga Road, Bangalore City in CC.No.27032/2010 dated 07.02.2015, (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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Brief facts of the complaint are that the complainant and accused were known to each other. In month of August 2009, accused approached the complainant for financial assistance of Rs.15,00,000/- to produce a film BANA and that film was at the stage of completion. Considering the request of accused, the complainant has paid a sum of Rs.15,00,000/- by way of cash to the accused during the 1st week of August, 2009 and the accused has agreed to repay the same within six months along with nominal bank interest. The complainant after lapse of six months approached the accused and

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demanded to repay the hand loan of Rs.15,00,000/- for which the accused has issued three cheques bearing No.768519 dated 04.03.2010, cheque bearing No.002428 dated 14.03.2010 both the cheques were drawn on Centurion Bank Ltd., Cunningham Road Branch, Bangalore and another cheque bearing No.680061 dated 24.03.2010 drawn on ICICI Bank Ltd., Avenue Road, K.G.Road Extension, Bangalore, each worth of Rs.5,00,000/- in total Rs.15,00,000/- (Rupees Fifteen Lakhs only). The complainant has presented the said cheques through his banker viz., Sree Thyagaraja Co-operative Bank Limited, K.R.Road Branch, Bangalore for their encashment and the same were dishnonoured with an endorsement "Account Closed". On 31.03.2009, the complainant has issued a legal notice to the accused by RPAD as well as under Certificate of Posting. The notice sent by RPAD as well as under Certificate has been duly served upon the accused. After receipt of notice the accused neither replied nor paid the cheque amount. Hence, the complainant has filed a complaint against the accused for the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

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After taking cognizance, the trial Court has registered the case in CC.No.27032/2010 and summons was issued to the accused. In response to summons accused appeared before the trial Court and was enlarged on bail. Substance of plea was recorded and 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, 11 documents were marked as Ex.P1 to Ex.P11. On closure of complainant side evidence, statement of accused under Section 313 of Cr.P.C was recorded. Accused has denied the evidence of PW1 and he has adduced his evidence as DW1 by way of affidavit and he has also adduced the evidence of DW2 to DW4.

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On hearing the arguments, the trial Court has acquitted the accused. Being aggrieved by the judgment of acquittal the 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 acquitted the accused on

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5 - NC: 2023:KHC:46293 CRL.A No. 421 of 2015

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the basis of evidence of DW1, which was filed by way of affidavit which is not permissible under law and also the decision of Hon'ble Apex Court. On all these grounds sought for remand the case to the trial Court for disposal in accordance with law.

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Respondent counsel remained absent. Hence, the arguments on respondent side is taken as NIL.

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Having heard the arguments of appellant and perusal of records, the following points would arise for my consideration:

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1. Whether the appellant/complainant has made out a ground to remand the case to the trial Court for disposal of the case 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

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before this Court. The complainant has filed a complaint for

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dishonour of cheques i.e., Ex.P1 to Ex.P3 issued by the accused for a sum of Rs.15,00,000/-, with an endorsement "Account Closed". To prove the case of the complainant one witness examined as PW1, 11 documents were marked as Ex.P1 to Ex.P11. On closure of complainant side evidence, the accused Sri.J.Srinivasalu has adduced his evidence by way of affidavit, which is not permissible under the provisions of Section 145 of the Negotiable Instruments Act, 1881.

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In this regard, it is pertinent to refer to the decision

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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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" 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

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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 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

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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 be 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 careful examination of the material placed before this Court, it is crystal clear that the trial Court has received the evidence of DW1 by way of affidavit which is not permissible under the provisions of Section 145 of the Negotiable Instruments Act, 1881 and also the aforesaid decisions of the Hon'ble Apex Court. The trial Court relying on the evidence of DW1 and other documents produced by the accused, has acquitted the accused. The evidence of DW1 cannot be looked into as the accused has adduced his evidence by way of affidavit. Under the given circumstances, keeping in the mind of aforesaid decisions, it is just and proper 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. Accordingly, complainant has made out a ground to remand the case to the trial Court. 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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10 -

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NC: 2023:KHC:46293 CRL.A No. 421 of 2015

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ORDER

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i. Appeal is allowed .

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ii. The judgment of acquittal passed by the XXIII Additional Chief Metropolitan Magistrate, Nrupathunga Road, Bangalore city in CC.No.27032/2010 dated 07.02.2015 is set-aside.

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iii. The matter is remitted back to the trial court with a direction to provide an opportunity to the accused/respondent to adduce his evidence in accordance with law.

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

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v. The complainant/appellant is directed to appear before the trial Court on 17.01.2024, without seeking any further notice from the trial Court in this regard.

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

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vii. After appearance of the accused, the trial Court is directed to dispose of the case within four months from the date of appearance of the accused as the matter is of the year 2010.

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viii. 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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Sd/JUDGE

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PK CT: BHK

Srinivas N v. Srinivasalu J

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Srinivas N v. Srinivasalu J

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