Sri K v Venkatachalapathy Vs Sri Atul Kumar K N

THIS CRL.A. IS FILED U/S.378(3) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:23.01.2013 PASSED BY THE ADDL. SESSIONS JUDGE, P.O., FTC-III, MAYO HALL, BANGALORE IN CRL.A.NO.25114/2012 - ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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Complainant has preferred this appeal against the judgment of acquittal dated 23^rd January, 2013 passed in Crl.A.No.25114 of 2012 by the Additional Sessions Judge and & Presiding Officer, FTC-III, Mayo Hall Unit, Bangalore (for short, "the first Appellate Court") by which order, the appeal filed by the accused came to be allowed by setting aside the judgment of conviction and sentence dated 31^st July, 2012 passed in CC No.26858 of 2011 by the XIV

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ACMM, Bangalore (for short "the trial Court").

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HC-KAR

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For the sake of convenience, the parties herein

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

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Brief facts of the complaint are that the accused approached the complainant for hand loan of Rs.15,00,000/- on 01^st October, 2010 for domestic purposes and agreed to repay the same with interest within short period. Calculating the interest, the accused also issued cheque bearing No.801795 dated 27^th May, 2011 for Rs.17,70,000/- drawn on Syndicate Bank, Shantinagar Branch, Bangalore towards discharge of his liability. When the complainant presented the cheque for encashment, the same was returned with endorsement "funds insufficient" and the Bank issued return memo on 28^th May, 2011. The complainant got issued Notice on 01^st June, 2011 through RPAD as well as through Courier. Accused received Notice on 03^rd June, 2011, but neither

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replied to notice nor paid the cheque amount. Hence, complainant has lodged complaint under Section 138 of

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HC-KAR

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Negotiable Instruments Act, 1881. The trial Court took cognizance against the accused for commission of offence under the aforesaid Section and case came to be registered in CC No.26858 of 2011. Summons was issued. In response to summons, accused appeared before the trial Court and enlarged on bail. Substance of plea was recorded. Accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, one witness was examined as PW1, eleven documents were marked as Exhibits P1 to P11. On closure of complainant's side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused denied

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the evidence of PW1 and adduced his evidence by way of Affidavit on 05^th June, 2012. Though accused adduced his evidence, no document was marked on his behalf. Having heard the arguments on both sides, the trial Court convicted the accused for offence under Section 138 of Negotiable Instruments Act and sentenced the accused to pay fine of Rs.17,70,000/-, in default, to undergo simple

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HC-KAR

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imprisonment for a period of one year. Being aggrieved

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by the impugned judgment passed by the trial Court, the accused has preferred appeal before the first Appellate Court in Criminal Appeal No.25114 of 2012. The same came to be allowed by judgment dated 23^rd January, 2013 whereby the judgment of conviction passed by the trial Court came to be set aside, consequently accused was acquitted. Being aggrieved by the said judgment of acquittal passed by the first Appellate court, the complainant has preferred this appeal.

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Sri Shravan S. Lokre, learned Senior Counsel appearing for Sri Samarth S. Lokre, counsel appearing for the appellant, would submit that the respondent-accused has adduced his evidence by way of affidavit, which is not permissible in law. Though the first Appellate court has discussed about the evidence of DW1 at paragraph 8 of the judgment, but has acquitted the accused. The evidence of DW1, which is filed by way of affidavit, is not permissible under law. The first Appellate Court ought not

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HC-KAR

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to have considered the evidence of DW1. However, the first Appellate Court has considered the same. In view of the judgment of Hon'ble Supreme Court in the case of MANDVI CO-OPERATIVE BANK v. NIMESH B. THAKORE

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reported in AIR 2010 SC 1402, accused cannot be allowed to tender evidence by way of affidavit. Hence, he sought to remand the case to the trial Court to provide an opportunity to the accused to adduce his oral evidence, in accordance with law. Accordingly, he sought to allow the appeal.

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Sri A.N. Radhakrishna, learned counsel

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appearing for the respondent-accused has no objection to remand the matter to the trial Court with a direction to provide opportunity to the accused to adduce oral evidence, in accordance with law.

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I have examined the materials placed before

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this Court. It is not in dispute that the accused Atul Kumar, has adduced his evidence by way of affidavit on

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HC-KAR

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05^th June, 2012, which is not permissible under law. In view of the judgment of Hon'ble Supreme Court in the case of MANDVI CO-OPERABIVE BANK (supra), it is just and proper to remand the case to the trial Court for disposal in accordance with law. Accordingly, I proceed to pass the following:

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O R D E R

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i. Appeal is allowed;

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ii. Judgment of conviction dated 31^st July, 2012 passed in CC No.26858 of 2011 by the XIV Additional Chief Metropolitan Magistrate, Bangalore; and the judgment of acquittal dated 23^rd January, 2013 passed in Crl.A.No.25114 of 2012 by the Additional Sessions Judge & Presiding Officer, FTC-III, Mayo Hall Unit, Bangalore, are set aside;

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HC-KAR

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iii. The case is remanded back to the trial Curt

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with a direction to provide opportunity to

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the accused to adduce his oral evidence, in accordance with law;

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iv. The trial Court is also directed to provide an opportunity to the legal representatives of the complainant to adduce their evidence, if any. Thereafter, the trial Court shall dispose the matter in

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accordance with law.

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v. Both the parties are directed to appear before the trial Court on 04^th December, 2025, without waiting for any notice in this regard;

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vi. As the matter is of the year 2011, the trial Court shall dispose the case as expeditiously as possible, and in any

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