Allowed

Sri S Kumar v. Sri Shanmugam

Karnataka HC12 Dec 2023CRL.A/541/2014

Case brief

AI extract

What is this about?

In an appeal against acquittal under Section 138 NI Act, the High Court set aside the trial Court's order. Relying on Supreme Court precedent, the Court held that the trial erred in permitting the accused to give evidence via affidavit under Section 145 NI Act. The matter was remanded to record legal evidence.

What did the court decide?

Acquittal set aside. Case remitted to trial Court to record evidence of the accused in witness box followed by crossexamination.

Sri S Kumar Vs Sri Shanmugam — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:45062 CRL.A No. 541 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 541 OF 2014

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BETWEEN:

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SRI. S. KUMAR, S/O SUNDARAM, AGED ABOUT 47 YEARS, R/AT NO.352/A, 6TH MAIN, MANJUNATH NAGAR, NEAR PUSHPANJALI THEATER, BANGALORE - 560 010.

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…APPELLANT

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(BY SRI. MURALIDHARA S, 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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SRI. SHANMUGAM, S/O KANAPPA, AGED ABOUT 45 YEARS, R/AT NO.14/14, SARASWATHI HOUSE, 4TH CROSS, MANJUNATH NAGAR, BEHIND PRASANNA TALKIES ROAD, MAGADI ROAD, BANGALORE - 560 023. …RESPONDENT

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(BY SRI. H.K. REVANASIDDAPPA, ADVOCATE)

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THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 3.5.14 PASSED BY THE XXII ADDL. C.M.M., BANGALORE CITY IN C.C.NO.32716/2009 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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NC: 2023:KHC:45062 CRL.A No. 541 of 2014

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THIS APPEAL, COMING ON FOR ARGUMENTS, 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 XXII Additional Chief Metropolitan Magistrate, Bangalore City in CC.No.32716/2009 dated 03.05.2014, (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 complainant and the accused happened to be old friends. The accused approached the complainant in the month of October 2008 and requested a handloan for Rs.8,75,000/- (Rupees Eight Lakhs and Seventy Five thousand only) to meet his business exigencies. Accordingly, the complainant had given Rs.8,75,000/- to the accused by way of cash in the 3rd week of October 2008. Accused had promised the complainant that, he will repay the same by the end of December 2008. The complainant approached the accused in the 2nd week of

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3 - NC: 2023:KHC:45062 CRL.A No. 541 of 2014

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December 2008 and demanded for the repayment of the aforesaid loan amount. Accused had issued a cheque bearing No.910387 for a sum of Rs.8,75,000/- (Rupees Eight Lakhs and Seventy Five thousand only) dated 17.12.2008 drawn on Canara Bank, Magadi Road, Bangalore and assured the complainant that, the cheque will be honoured on its presentation. Accordingly, the complainant presented the said cheque for encashment, but the same was returned unpaid with an endorsement to that effect as "Insufficient Funds". Thereafter, the complainant got issued the legal notice to the accused on 03.07.2009 through his advocate calling upon the accused to pay the said amount. The same is sent by RPAD and COP. The legal notice is sent through RPAD which was served on 07.07.2009 and the notice was also sent through UCP, which was also delivered. Inspite of receipt of notice, the accused instead of complying the demand made in the legal notice, sent an untenable reply on 20.07.2009 and thus the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

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After taking cognizance, the trial Court has

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registered case against the accused in CC.No.32716/2009 for

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NC: 2023:KHC:45062 CRL.A No. 541 of 2014

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the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and summons was issued to the accused, in pursuance of summons accused appeared before the trial Court and 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, one witness was examined as PW1, 9 documents were marked as Ex.P1 to Ex.P9. On closure of complainant's side evidence, statement under Section 313 of Cr.P.C was recorded. Accused has denied the evidence of PW1 and adduced his evidence by way of affidavit as DW1 and 10 documents were marked as Ex.D1 to Ex.D10.

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On hearing the arguments the trial Court has acquitted the accused. Being aggrieved by the impugned judgment of acquittal the complainant/appellant has preferred this appeal.

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Learned counsel for the appellant is remained

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absent.

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NC: 2023:KHC:45062 CRL.A No. 541 of 2014

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Learned counsel for the respondent is present.

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Learned counsel for the respondent has submitted

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his arguments that the trial Court has properly appreciated the evidence on record in accordance with law and facts. The appellant has not made out any grounds to interfere with the impugned judgment of acquittal and on all these grounds sought for dismissal of the appeal.

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This Court has examined the materials placed before this Court. To prove the guilt of the accused, complainant was examined as PW1, 09 documents were marked as Ex.D1 to Ex.D9. On closure of complainant's side evidence accused has adduced his evidence as DW1 by way of affidavit which is not permissible under the provisions of Section 145 of the Negotiable Instruments Act, 1881. In this regard, I have relied on the decisions of M/s.MANDVI COOPERATIVE 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:45062 CRL.A No. 541 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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8 - NC: 2023:KHC:45062 CRL.A No. 541 of 2014

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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 under law. Relying on the evidence of DW1 along with the crossexamination of PW1, the trial Court has acquitted the accused. Since the accused/respondent has not adduced his evidence in accordance with law, same cannot be looked into by this Court. Hence, it is just and proper to remit the matter to the trial Court with a direction to provide an opportunity to produce his evidence in accordance with law.

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For the aforesaid reasons and discussions, I proceed to pass the following:

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9 - NC: 2023:KHC:45062 CRL.A No. 541 of 2014

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O R D E R

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Appeal is allowed .

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The judgment passed in CC.No.32716/2009 on the file of XXII Additional Chief Metropolitan Magistrate, Bangalore City, dated 03.05.2014, is set-aside.

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The case is remitted back to the trial Court with a direction to provide opportunity to the accused to adduce his evidence in accordance with law.

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Trial Court is directed to issue Court notice to both parties. After presence of both parties the trial Court is directed to dispose of the case in accordance with law, as expeditiously as possible.

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

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PK, CT: BHK

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Sd/JUDGE

Sri S Kumar v. Sri Shanmugam

Case brief

What is this about?

What did the court decide?

Sri S Kumar v. Sri Shanmugam

Case brief

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What did the court decide?

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