Remanded

Sri Rajesh v. Sri Mallesh

Karnataka HC5 Dec 2023CRL.A/727/2014

Case brief

AI extract

What is this about?

The High Court allowed an appeal against acquittal under Section 138 of the Negotiable Instruments Act. It set aside the acquittal, remitted the case to the trial court to exclude illegally admitted affidavit evidence by the accused, and permitted additional documents filed by the appellant.

What did the court decide?

Appeal allowed; impugned acquittal set aside; case remitted to trial court to exclude affidavit evidence and allow additional documents.

Sri Rajesh Vs Sri Mallesh — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:43887 CRL.A No. 727 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^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. 727 OF 2014

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BETWEEN:

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SRI. RAJESH, S/O. MUNIYAPPA, AGED ABOUT 38 YEARS, R/AT PICHAGUNTRAHALLI VILLAGE, MASTHI HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 101.

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…APPELLANT (BY SRI. SHANKAR REDDY C., 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. MALLESH, S/O. GOVINDAPPA, AGED ABOUT 39 YEARS, R/AT PICHAGUNTRAHALLI VILLAGE, MASTHI HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 101.

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…RESPONDENT (BY SMT. NEERAJA KARANTH, ADVOCATE)

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THIS CRL.A. IS FILED U/S 378 (3) & (4) CR.P.C PRAYING TO CALL FOR RECORDS IN C.C. NO. 332/2011 FROM THE FILE OF THE HON'BLE COURT OF THE SECOND ADDL. CIVIL JUDGE AND JMFC, AT MALUR, PERUSE THE SAME, HEAR THE APPELLANT AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT DATED 28.6.2014 IN C.C.NO. 332/2011 ON THE FILE OF THE HON'BLE COURT OF THE SECOND ADDL. CIVIL JUDGE & JMFC, MALUR AND PUNISH THE RESPONDENT / ACCUSED HEREIN BY GRANTING AN ORDER OF CONVICTION.

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NC: 2023:KHC:43887 CRL.A No. 727 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 complainant/appellant has preferred this appeal

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against the judgment of acquittal passed by the II Addl. Civil Judge and JMFC, Malur in C.C.No.332/2011 dated 28.06.2014.

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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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3. Brief facts of the complaint is that:

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The complainant and accused are friends from THE

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past several years. Out of the friendship, accused approached the complainant to provide him financial assistance of Rs.1,90,000/- for the purpose of purchasing the cattle to start dairy business and promised the complainant to repay the same within two months. On the assurance of the accused, the complainant had given a hand loan of Rs.1,90,000/- in cash to the accused in the last week of May, 2011. After lapse of two months, complainant demanded the accused to repay the hand

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loan amount. Accused instead of paying the loan amount issued a cheque bearing No.875890 dated 27.07.2011 for

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the loan amount of Rs.1,90,000/- in favour of the complainant drawn on Canara Bank, Masthi Branch, Malur Taluk. When the said cheque was dishounored for the reason 'funds insufficient', banker had issued an endorsement on 27.07.2011. Complainant informed the accused regarding dishonor of the cheque and demanded the loan amount. But the accused had given evasive reply. Then the complainant issued a legal notice to the accused through RPAD demanding to repay the cheque amount. Same was served on the accused on 04.08.2011. After receiving the said notice, accused had given vague reply to the complainant and did not pay the cheque amount. Hence, the complainant lodged a complaint against the accused for the commission of offence punishable under Section 138 of N.I. Act.

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The trial Court has taken cognizance against the accused for the commission of the alleged offence and a

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case was registered in C.C.No.332/2011 for the commission of offence punishable under Section 138 of N.I. Act. Summons was issued to the accused. In response to the summons, accused appeared before the trial Court and was enlarged on bail. Substance of plea was recorded. Accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, complainant got himself examined as PW.1 and marked six documents as Exs.P1 to P6. On closure of complainant’s side evidence, statement of accused under Section 313 of Cr.P.C. was recorded. Accused had denied the evidence of PW.1 and adduce his evidence as DW.1 and another witness was examined on his behalf as DW.2 and marked 14 documents as Exs.D1 to D14. On hearing the arguments on both sides, the trial court acquitted the accused for the commission of offence punishable under Section 138 of N.I. Act. Being aggrieved by the same, the complainant has preferred the present appeal.

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Learned counsel for the appellant/complainant

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has submitted his arguments that the trial Court was not justified in dismissing the complainant's case and find in fault with the case made out by the complainant which was not warranted in law. The fact of the accused having not signed the cheque in presence of the appellant is of no consequences at all as long as the accused does not deny his signature and does not deny that cheque belongs to him and the initial presumption available under the Evidence Act ought to have been raised in favour of the complainant. But the trial Court had made much of the evidence as if to find fault with the case of the complainant. The trial Court has ignored the provisions of Section 139 of N.I. Act. The trial Court has not appreciated the evidence on record in accordance with law and facts and has committed an error in receiving the evidence of DWs.1 and 2 by way of affidavit, which is not permissible under law. Apart from this, the complainant has filed I.A.No.2/2022 under Section 391 of Cr.P.C. to produce additional documents by way of additional evidence, which

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is supported by an affidavit. The proposed additional documents are very much necessary to adjudicate the matter in dispute. On these grounds, he sought for allow this application and remand the matter to the trial Court for disposal in accordance with law.

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Learned counsel for the respondent/accused has submitted her arguments that the trial Court has properly appreciated the evidence on record in accordance with law and facts and there are no grounds to interfere with the impugned judgment of acquittal. The proposed additional documents are not required for adjudication of the matter. On all these grounds, she sought for dismissal of the appeal.

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Having heard the arguments on both sides and

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perused the records, following points would arise for my consideration:

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Whether the appellant/complainant has made out any grounds to remand the matter to the trial Court for disposal in accordance with law?

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Whether I.A.No.2/2022 filed under Section 391 of Cr.P.C. by the

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appellant/complainant deserves to be allowed?

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What order?

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My answer to the above points are as under:

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Point No.1: In the affirmative; Point No.2: In the affirmative; Point No.3: 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 guilt of the accused, complainant got himself examined as PW.1 and marked six documents as Exs.P1 to P6. On closure of complainant's side evidence, accused adduced his evidence as DW.1 and another witness was examined on his behalf as DW.2 and go marked 14 documents as Exs.D1 to D14. DW.1Mallesh, S/o Govindappa and another witness DW.2Murthy, S/o Govindappa have adduced their evidence by way of affidavit instead of examination-in-chief, which is not permissible under law and also same is contrary to the provisions of Section 145 of N.I. Act, 1981. In this regard

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I relied on the judgment of M/S. MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH B.THAKORE 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 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

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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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Since the accused has adduced his evidence by

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way of affidavit, the same is contrary to the provisions of Section 145 of N.I. Act and also decision of Hon'ble Supreme Court in the case of M/s Mandvi cited supra .

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Hence, it is just and proper to remand the matter to the trial Court by providing an opportunity to the adduced/respondent to adduce his evidence in accordance with law. Hence, I answer Point No.1 in the affirmative.

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Regarding Point No.2:

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With regard to I.A.No.2/2022 filed under Section 391 of Cr.P.C. by the appellant/complainant is concerned, which is supported with an affidavit of Sri.Rajesh, he has stated that the trial Court has dismissed the complaint filed by the complainant/appellant. Learned counsel for the complainant had engaged the services of present advocate to file an appeal and he was informed that there is a need to produce additional documents in this appeal and instructed him to apply for certified copies and make available the same to be filed in this appeal. Accordingly, he has obtained the proposed documents through Right To Information Act, which are very much necessary to adjudicate the matter in dispute.

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NC: 2023:KHC:43887 CRL.A No. 727 of 2014

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On careful examination of the materials placed before this Court, it appears that the proposed additional documents are required to adjudicate the matter in dispute. Accordingly, the appellant/complainant has made out a ground to allow this application. Hence, I answer Point No.2 in the affirmative.

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Regarding Point No.3:

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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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The appeal is allowed ;

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The impugned judgment of acquittal dated 28.06.2014 passed in C.C.No.332/2011 by the II Addl. Civil Judge & JMFC at Malur is hereby set aside;

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The application filed under Section 391 of Cr.P.C. by the complainant is allowed;

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

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NC: 2023:KHC:43887 CRL.A No. 727 of 2014

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The trial Court is also directed to provide an opportunity to the complainant to adduce his additional evidence, if any;

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Both the parties are directed to appear before the trial Court on 21.12.2023 without seeking any further notice from the trial Court;

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The trial Court is directed to dispose of the case in accordance with law within a period of six months from the date of appearance of the parties as the matter is of the year 2011;

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Registry is directed to send a copy of this judgment along with copies of the documents which are filed along with I.A.No.2/2022 and the trial Court records to the concerned trial Court without causing any delay.

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Sd/JUDGE

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PGG

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CT:SNN

Sri Rajesh v. Sri Mallesh

Case brief

What is this about?

What did the court decide?

Sri Rajesh v. Sri Mallesh

Case brief

What is this about?

What did the court decide?

What the court decided

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