Allowed

V G Shivashankar v. N a Balaji

Karnataka HC6 Dec 2023CRL.A/465/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against acquittal under Section 138 NI Act. The court held that the trial court committed a legal error by admitting affidavit evidence from the accused in lieu of oral testimony, violating Section 145 of the Negotiable Instruments Act, 1881, and conflicting with Supreme Court precedents. Consequently, the acquittal was set aside, and the case was remanded for a fr

What did the court decide?

Judgment of acquittal set aside; accused directed to appear before trial court; case remitted to trial court for disposal of fresh trial with opportunity for oral evidence to both parties.

V G Shivashankar Vs N a Balaji — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:44149 CRL.A No. 465 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU 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

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CRIMINAL APPEAL NO. 465 OF 2013

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BETWEEN:

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V G SHIVASHANKAR, S/O LATE V D GANGAPPA, AGED ABOUT 68 YEARS, R/O NO.1, 8TH BLOCK, S B M COLONY, SRIRAMPUR, MYSORE.

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…APPELLANT

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(BY SRI. NATARAJU T, ADVOCATE (ABSENT) )

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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N A BALAJI, S/O N C ASHWANTH NARAYAN SHETTY, AGED ABOUT 41 YEARS, R/O NO.1023, KALAMMA TEMPLE RAOD NEAR BUS STAND, KOLAR.

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(BY SRI. G.C. HANUMAIAH, ADVOCATE)

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…RESPONDENT

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THIS CRL.A IS FILED U/S. 378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED: 9.11.12 PASSED BY THE I ADDL. I CIVIL JUDGE AND JMFC, MYSORE IN C.C.NO.58/11 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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NC: 2023:KHC:44149 CRL.A No. 465 of 2013

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THIS APPEAL, COMING ON FOR ORDERS, 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 I Additional First Civil Judge and JMFC, Mysore dated 09.11.2012 in CC.No.58/2011, (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 complainant is that the accused and complainant are known to each other. The mother of the accused purchased the house property situated at Kolar from the complainant through a registered sale deed dated 31.03.2010. The accused borrowed the loan of Rs.5,00,000/out of the consideration amount received by the complainant. To pay the said amount, the accused issued cheque bearing No.869696 dated 25.04.2010 pertaining to his account at the State Bank of India, Kolar. The accused assured that he will pay the interest at the rate of 1% p.m. The accused not paid

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the amount and went on requesting the complainant to post-pone the presentation of the cheque and at last the accused told the complainant to present the cheque on 20.10.2010. Accordingly, the complainant presented the cheque, which was returned dishonoured for "funds insufficient". Thereafter, the complainant issued notice dated 04.11.2010 calling upon the accused to repay the cheque amount covered under the cheque. Inspite of receipt of the notice, the accused has not paid the amount. Hence, the complainant has lodged the complaint under Section 138 of Negotiable Instruments Act, 1881.

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After taking cognizance the trial Court has registered the case against the accused for the commission of offence punishable under Section 138 of Negotiable Instruments Act, 1881 in CC.No.58/2011.

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Summons was issued to the accused in pursuance of summons, accused appeared through the counsel and substance of plea was recorded, accused pleaded not guilty and claimed to be tried.

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NC: 2023:KHC:44149 CRL.A No. 465 of 2013

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To prove the guilt of the accused, complainant himself examined as PW1, 08 documents were marked as Ex.P1 to Ex.P8. On closure of complainant's side evidence, the statement of accused as provided under Section 313 of Cr.P.C was recorded. Accused denied the evidence of PW1 and adduced the evidence of DW1 and DW2 by way of affidavit and 04 documents were marked as Ex.D1 to Ex.D4.

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On hearing the arguments the trial Court acquitted

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

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Respondent's counsel is present. Heard the

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arguments of learned counsel for the respondent.

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Appellant's counsel is absent.

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To prove the guilt of the accused, the complainant examined as PW1 and 8 documents were marked as Ex.P1 to Ex.P8. On closure of complainant's side evidence, accused has adduced the evidence of DW1 and DW2 by way of affidavit which is not permissible under law, under the provisions of Section 145 of the Negotiable Instruments Act, 1881. In this regard, it is relevant to refer to the dictum of Hon'ble Supreme

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Court in the case of M/s. MANDVI CO-OPERATIVE BANK LIMITED Vs. 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' 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

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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 case of SMT. H.BHAGYA Vs. SMT.R.SAVITHRAMMA

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reported in 2013(1) KCCR 834 , relying upon the judgment of the Hon'ble Supreme Court in the case of M/s.MANDVI COOPERATIVE 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

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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 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 DWs1 and 2 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

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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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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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Appeal is allowed :

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Judgment of acquittal dated 09.11.2012 passed by the I Additional First Civil Judge and JMFC, Mysore in CC No.58/2011, is set aside;

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Accused/respondent is directed to appear before the trial Court on 08.01.2024 and the trial Court is directed to issue Court notice to the complainant and after securing the complainant the trial Court is directed to proceed with the case in accordance with law. Complainant is also permitted to adduce any additional evidence, if any;

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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 oral evidence, if any;

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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 2011;

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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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V G Shivashankar v. N a Balaji

Case brief

What is this about?

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V G Shivashankar v. N a Balaji

Case brief

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