Remanded

Mr S C Kariappa v. Mr S L Mohan Kumar

Karnataka HC6 Dec 2023CRL.A/746/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal filed by the complainant against an acquittal in a cheque dishonour case. Finding procedural lapses, including thefailure to record Section 313 Cr.P.C. statement and inadmissible affidavit evidence, the court remanded the matter to the Trial Court for a proper trial in accordance with law.

What did the court decide?

Appeal allowed; acquittal set aside; matter remitted to Trial Court to record Section 313 statement and allow accused to adduce evidence.

Mr S C Kariappa Vs Mr S L Mohan Kumar — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:44231 CRL.A No. 746 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.746 OF 2014

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BETWEEN:

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MR S C KARIAPPA AGED ABOUT 62 YEARS S/O LATE S A CHINNAPPA R/A NO.83, 5^TH B MAIN Digitally signed by SANDHYA S 4^TH CROSS, R P C LAYOUT VIJAYANAGAR Location: High Court of BANGALORE-560040 Karnataka …APPELLANT (BY SRI. PRAVEEN C., ADVOCATE)

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AND:

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MR S L MOHAN KUMAR AGED ABOUT 48 YEARS S/O P S LAKSHMAIAH R/A NO.361, 5^TH MAIN ROAD R P C LAYOUT, VIJAYANAGAR BANGALORE-560040

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ALSO TO BE SERVED AT MR. S.L.MOHAN KUMAR S/O P.S.LAKSHMAIAH AGED ABOUT 48 YEARS, HAL AIRCRAFT FACTORY, METHOD SECTION, BANGALORE - 17

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…RESPONDENT

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(BY SRI. MOHAN KUMAR .T, ADVOCATE, FOR SRI. A.N.RADHAKRISHNA, ADVOCATE)

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THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:5.8.14 PASSED BY THE XXII ADDL.C.M.M., BANGALORE IN C.C.NO.31978/09 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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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 against the judgment of acquittal dated 05.08.2014 passed by the XXII Addl. Chief Metropolitan Magistrate, Bangalore City. (hereinafter referred to as 'Trial Court' for short.)

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For the sake of convenience, the parties in this

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appeal are referred to as per their status and rank before the Appellate Court.

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The brief facts of the complaint is that the accused has approached the complainant and availed hand loan of Rs.5,75,000/- to meet his financial commitments. At the time of availing the hand loan, the accused has executed on demand promissory note with consideration

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receipt and issued two cheques bearing No.607693 dated 28.02.2009 for a sum of Rs.75,000/- and another bearing No.321173 dated 15.05.2009 for a sum of Rs.5,00,000/in a total sum of Rs.5,75,000/-. Both cheques are drawn on SBI, HAL Branch, Bangalore in favour of complainant towards the discharge of legal debt with an assurance that, the cheque will be honoured on its presentation. As per the instruction of accused, the complainant has presented the said two cheques for encashment on 03.06.2009 through his banker State Bank of Mysore, RPC Layout, but the said cheques returned unpaid with an endorsement as 'funds insufficient'. Thereafter, the complainant got issued legal notice through his counsel on 08.06.2009 through RPAD as well as UCP. The notice sent under RPAD to the residential address has been returned with a shara 'not claimed' and the notice sent to the second address is returned with a shara 'insufficient address' and the notice sent through UCP to both the addresses have not been returned and the same was duly served to the accused. The accused neither paid the

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cheque amount nor replied to the notice. Thus, the complainant has lodged complaint under Section 138 of Negotiable Instruments Act,1881 (hereinafter referred to as 'N.I.Act' for short).

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The Trial Court has taken cognizance for the commission of offence punishable under Section 138 of N.I.Act and the case was registered in C.C.No.31978/2009. The summons was issued to the accused. In pursuance of the summons, the accused appeared before the Court and enlarge on bail. The substance of plea was recorded and the accused pleaded not guilty and claims to be tried.

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To prove the case of the complainant, one witness S.C. Kariyappa is examined as PW.1. 14 documents were got marked as Ex.P1 to Ex.P14. On closure of complainant's side evidence, statement under Section 313 of Cr.P.C. was recorded on 21.10.2010. The accused has denied the evidence of PW.1. The accused has adduced his evidence as DW.1 by way of affidavit on

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14.03.2011 and no documents were marked on his behalf. On hearing the arguments, the Trial Court has convicted the accused for the commission of offence punishable under Section 138 of N.I.Act and sentenced to pay a fine of Rs.76,000/-. Out of the fine amount, Rs.75,000/- was awarded as compensation to the complainant under Section 357 of Cr.P.C. In default of payment of compensation amount, the accused shall undergo simple imprisonment for three months. Being aggrieved by this judgment of conviction and order of sentence, the complainant has preferred appeal in Crl.A.No.118/2012 and in response, the accused also preferred appeal in Crl.A.No.767/2011 before the Fast Track Court-II, Bengaluru City respectively. Learned Sessions Judge has allowed both appeals on 10.04.2013 and allowed the application filed under Section 391 of Cr.P.C. by the complainant. The matter was remitted to the Trial Court with a direction to provide an opportunity to the complainant to adduce additional evidence and dispose the matter in accordance with law. After remanding the

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matter, PW.1 has adduced further evidence on 02.09.2013 and also produced documents which are got marked as Exs.P15 to P33. After recording further examination-inchief of PW.1, the case was posted for recording additional statement under Section 313 of Cr.P.C on 25.04.2014. Thereafter, the Trial Court has not recorded further/additional statement under Section 313 of Cr.P.C. as per further/additional evidence adduced by the complainant. Thereafter, the accused Mohan Kumar has adduced his evidence as DW.1. In the deposition of DW.1, the Trial Court has recorded that the complainant's counsel has adopted the cross-examination dated 08.04.2011 in respect of DW.1. On hearing the arguments, the Trial Court has acquitted the accused. Being aggrieved by the judgment of acquittal, the complainant/appellant has preferred the present appeal.

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Learned counsel for the appellant submits

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that the Trial Court has not properly appreciated the evidence on record in accordance with law and facts and it

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has not properly summarize the facts of the case of complainant. PW.1 had adduced his evidence on 02.09.2013. After remanding the case to Trial Court, the Trial Court has not recorded statement under Section 313 of Cr.P.C. as to the evidence dated 02.09.2013 even though it has recorded further examination-in-chief of PW.1 on 02.09.2013. The order sheet reveals that on 25.04.2014, after completion of evidence of PW.1, the case was posted for recording statement under Section 313 of Cr.P.C. but the Trial Court has not recorded the same.

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Further, it is submitted that the accused

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has adduced his evidence by way of affidavit which is not permissible under the provisions of Section 145 of N.I.Act. After remanding the case, the accused has adduced his further evidence by way of oral evidence. After adducing oral evidence of DW.1, the learned counsel for the complainant submits that he will adopt the crossexamination of DW.1 dated 08.04.2011 which is also not

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permissible under law. On all these grounds, he sought to remand the case to the Trial Court to record the statement under Section 313 of Cr.P.C. as to the further examination-in-chief of PW.1 and also provide opportunity to the accused to adduced his evidence in accordance with

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law by allowing this appeal.

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As against this, learned counsel for

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respondent submits that he has no objection to remand the matter to the Trial Court for disposal in accordance with law.

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9. Having heard the arguments and on

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perusal of entire material placed before this Court, the following points would arise for my consideration:

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i. Whether the appellant-complainant has made out a ground to remand the case to the Trial Court?

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ii. What order?

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My answer for the above points is as

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under:

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Point No.1: in the affirmative; 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 before this Court.

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The complainant has filed complaint under Section 138 of N.I.Act for dishonour of cheques for Rs.75,000/and Rs.5,00,000/- respectively.

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To prove the case of the complainant, the complainant has adduced his evidence as PW.1 and 33 documents were got marked as Exs.P1 to P33. On closure of complainant's side evidence, the accused has adduced his evidence as DW.1 by way of affidavit and no documents were got marked on his behalf.

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On careful examination of material placed before this Court, this Court has noted the following material lapses committed by the Trial Court:

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(i) In Page No.3 of the judgment, the Trial Court has observed as under:

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"Inspite of service of legal notice to the accused, he has neither complied nor replied to the notice."

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This observation is not correct.

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(ii) PW.1-complainant has produced Ex.P11 - reply notice. Though the accused has issued reply notice as per Ex.P11, the Trial Court has not observed the same.

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(iii) The Trial Court has not properly recorded the statement under Section 313 of Cr.P.C. PW.1 has stated in his examination-in-chief that the accused has sent reply notice as per Ex.P11 and he also deposed as to the execution of on demand promissory note as per Ex.P13 and consideration receipt as per Ex.P14. The Trial Court has not questioned in this regard while recording the statement under Section 313 of Cr.P.C.

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(iv) After remanding the case from the appellate court as per judgment passed in Crl.A.No.118/2012 c/w. Crl.A.No.767/2011, the Trial Court has recorded further examination-in-chief of PW.1 on 02.09.2013. In his further examination-in-chief, the complainant has produced Exs.P15 to 17 i.e. the Statements of account

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11 -

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pertaining to State Bank of Mysore, Canara Bank and Janatha Seva Co-operative Bank Ltd., respectively and also passbook extract of Canara Bank, Kodagu as per Ex.P18. He also produced documents Exs.P19 to P33. After recording further evidence of PW.1, the Trial Court has rightly posted the case for recording additional statement under Section 313 of Cr.P.C. but thereafter, the Trial Court has not recorded the same with regard to evidence of PW.1 recorded on 02.09.2013. The Trial Court has not assigned any reasons for dispensation of statement under Section 313 of Cr.P.C. which is contrary to the provisions of Section 313 of Cr.P.C.

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(v) The Trial Court has received the evidence of DW.1 by way of affidavit on 14.03.2011. On the basis of his evidence by way of affidavit which is filed instead of examination-in-chief, the accused has cross-examined which is contrary to Section 145 of N.I.Act and also the aforesaid decision of the Hon'ble Apex Court. and also contrary to the judgment of Hon'ble Apex Court, reported in AIR 2010 SC 1402, MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH B. THAKORE.

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In view of the above lapses and also keeping in mind the aforesaid decision of the Hon'ble Apex Court, it is just and proper to remand the case to the Trial

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Court with a direction to record the statement under Section 313 of Cr.P.C. as per evidence adduced by PW.1 in examination-in-chief dated 20.07.2010 and also 02.09.2013. It is also directed to provide an opportunity to the accused to adduce his evidence in accordance with law. Accordingly, the complainant/appellant has made out grounds to remand the case to the Trial Court for disposal in accordance with law. Hence, I answer point No.1 in affirmative.

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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 allowed ;

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Judgment of conviction dated 05.08.2014 passed in C.C.No.31978/2009 by the Court of XXII Addl. Chief Metropolitan Magistrate, Bangalore City, is set aside;

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The matter is remitted back to the Trial Court with a direction to record the statement of the accused under Section

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313 of Cr.P.C. as per the evidence of PW.1 dated 20.07.2010 and 02.09.2013;

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The Trial Court is also directed to provide an opportunity to the accused to adduce his evidence in accordance with law;

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Both parties are directed to appear before the Trial Court on 04.01.2024 without seeking further notice.

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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 2009.

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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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SSD

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List No.: 1 Sl No.: 27

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Sd/JUDGE

Mr S C Kariappa v. Mr S L Mohan Kumar

Case brief

What is this about?

What did the court decide?

Mr S C Kariappa v. Mr S L Mohan Kumar

Case brief

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