Allowed

Sri M C Shivappa v. Sri Udaya Kumar Shetty

Karnataka HC11 Dec 2023CRL.A/881/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal by the complainant in a cheque dishonour case. It held the trial Court erred in relying on the accused's affidavit evidence under Section 145 NI Act, which permits only the complainant's affidavit. The acquittal was set aside and the case remitted for a proper trial.

What did the court decide?

Judgment of acquittal set aside; case restored to file and remitted to trial Court to provide accused an opportunity to lead oral evidence in accordance with law.

Sri M C Shivappa Vs Sri Udaya Kumar Shetty — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:44844 CRL.A No. 881 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^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. 881 OF 2013

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BETWEEN:

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SRI M C SHIVAPPA S/O M.CHANNAPPA, AGED ABOUT 50 YEARS, AGRICULTURIST, RESIDING AT YALEBETHUR VILLAGE, DAVANAGERE TALUK, DAVANAGERE DISTRICT.

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…APPELLANT

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(BY SRI. JAGADEESH V N., 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 UDAYA KUMAR SHETTY S/O GOPAL SHETTY, AGED ABOUT 50 YEARS, RESIDING AT NO.5/0083/2, 1ST FLOOR, 3RD CROSS, MRUTHYUNJAYA NAGARA, RANEBENNUR, HAVERI DISTRICT-581115.

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…RESPONDENT

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(BY SRI. BALU MAHENDRA Y.H., ADVOCATE)

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THIS CRL.P IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 03.05.2013 PASSED BY THE III ADDL. SR. C.J. AND J.M.F.C., DAVANAGERE IN C.C.NO.2622/2009 (OLD C.C.NO.1578/2008) - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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NC: 2023:KHC:44844 CRL.A No. 881 of 2013

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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 judgment of acquittal dated 3rd May, 2013 passed in C.C.No.2622/2009 (old C.C.No.1578/2008) by the

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III Additional Senior Civil Judge and J.M.F.C., Davanagere (for brevity, hereinafter referred to as the "Trial Court").

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For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Trial Court.

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Brief facts of the complaint are that, the complainant and accused are the friends and out of their friendship, on 26.04.2007, accused came to the complainant's village Yelibetur, Davanagere Taluk, and asked for loan of Rs.4,00,000/- for his urgent family necessity and his daughters education. Accordingly, the complainant agreed to give a loan amount with interest @ 2% p.a., and on 26.04.2007 itself the complainant lend Rs.4,00,000/- to the accused. The accused agreed to repay the same, within six months and on the same day, the accused issued post dated cheque bearing No.428920

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3 - NC: 2023:KHC:44844 CRL.A No. 881 of 2013

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dated 26.10.2007 drawn on Syndicate Bank, Branch Byadgi for Rs.4,00,000/-. The complainant presented the said cheque for collection through his banker, but said cheque came to be dishonoured for want of sufficient funds. The complainant brought said fact to the knowledge of the accused. At that time, the accused requested two months time to pay the amount. At the request of accused on 01.01.2008, the complainant again presented the cheque for collection through his banker Shiva Sahakari Bank Niyamita, Davanagere. The said cheque came to be dishonoured for the reason "funds insufficient". The accused banker issued an endorsement to that effect on 02.01.2008 and same was informed to the complainant on 03.01.2008. Thereafter, on 19.01.2008, the complainant got issued legal notice to the accused through RPAD as well as COP to both addresses i.e., residential and bank address calling upon the accused to pay the cheque amount within 15 days from the date of receipt of notice. The notice sent through RPAD served on the accused on 22.01.2008 and the accused has sent reply notice on untenable grounds just to save his skin and to escape from the liability. The accused has not paid cheque amount within stipulated time period. Hence, the

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4 - NC: 2023:KHC:44844 CRL.A No. 881 of 2013

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complainant has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. After taking cognizance, the case was registered against the accused in C.C.No.1578/2008. Thereafter, it was numbered as C.C.No.2622/2009 and summons were issued to the accused. Pursuant to issuance of summons, the accused appeared before the trial Court and enlarged on bail. As there was sufficient material, plea was recorded, for which the accused pleaded not guilty and claimed to be tried.

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To prove the case, complainant got himself examined as PW.1 and marked seven documents as Exhibits P1 to P7. On closure of complainant's side evidence, statement under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the complainant's evidence and adduced the evidence as DWs.1 and 2 by way of affidavit and also got marked one document as Exhibit D1. Upon hearing arguments, the trial Court has passed judgment of acquittal. Being aggrieved by the impugned judgment of acquittal, the

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present appeal is preferred by the complainant/appellant.

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Appellant's counsel remained absent.

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5 - NC: 2023:KHC:44844 CRL.A No. 881 of 2013

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Respondent's counsel has submitted his argument

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that the trial Court has appreciated the evidence on record in accordance with law and facts that there are no grounds to interfere with the impugned judgment of acquittal and all these grounds sought for dismissal of the appeal.

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Having heard the arguments of the respondent and

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on perusal of material on record, the following points would arise for my consideration in this appeal:

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Whether the appellant / complainant has made out a ground to interfere with the impugned judgment of acquittal?

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What order?

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My answer for the above points is as under:

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Point No.1: in the affirmative

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Point No.2: as per final order

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Regarding Point No.1:

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I have examined the materials placed before this

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Court. The complainant has filed a complaint against the accused for the commission of offence under Section 138 of the

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Negotiable Instruments Act, 1881 for dishonour of cheque of Rs.4,00,000/-. To substantiate the case of the complainant, the complainant Sri.M.C.Shivappa examined as PW.1 and got marked seven documents as Exhibits P1 to P7 and on closure of complainant's side evidence, the accused has adduced his evidence as DW.1 - Udaya Kumar Shetty, by way of affidavit, which is not permissible under law. In this regard, I rely on the decision of the Hon'ble Apex Court in the case of MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH B. THAKORE reported in (2010)3 SCC 83 at paragraph Nos.31 and 32. The Hon'ble Apex Court, has held 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

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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 defence evidence with the complainant's evidence and to extend the same option to the accused as well."

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NC: 2023:KHC:44844 CRL.A No. 881 of 2013

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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. Relying on the evidence of accused DW.1, the trial Court has acquitted the accused. Since the accused had not adduced his evidence in accordance with law, the 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 opportunity to the accused to adduce his evidence, in accordance with law. Accordingly, the complainant has made out a ground to interfere with the impugned judgment of acquittal and also to remand the case to the trial Court. Hence, I answer Point No.1 in the 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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ORDER

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Appeal allowed;

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9 - NC: 2023:KHC:44844 CRL.A No. 881 of 2013

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Judgment of acquittal dated 3rd May, 2013 passed in C.C.No.2622/2009 (Old C.C.No.1578/2008) by the III Additional Senior Civil Judge and J.M.F.C., Davanagere, is set aside and the case is restored to file;

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Matter is remitted back to the trial Court with a direction to provide opportunity to the accused to adduce his oral evidence in accordance with law and also as per the judgment of the Hon'ble Supreme Court as observed by this Court in the body of the judgment;

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The trial Court is also directed to provide an opportunity to both the parties to adduce their additional evidence, if any;

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The accused /respondent is directed to appear before the trial Court on 10^th January, 2024, without seeking any further notice from the trial Court in this regard;

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The trial Court is directed to secure the presence of the complainant and dispose of the case , within six months, from the date

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NC: 2023:KHC:44844 CRL.A No. 881 of 2013

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10 -

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of appearance of both the parties, as the matter is old one of the year 2008;

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Registry to send the copy of this judgment along with the trial Court record to the trial Court, without any delay.

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Sd/JUDGE

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KG List No.: 1 Sl No.: 12

Sri M C Shivappa v. Sri Udaya Kumar Shetty

Case brief

What is this about?

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Sri M C Shivappa v. Sri Udaya Kumar Shetty

Case brief

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