Karnataka High Court
Mr. H.R.Guruswamy vs M/S. Deepak Sahakari Bank Ltd on 24 February, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.783 OF 2010
BETWEEN:
MR. H. R. GURUSWAMY
S/O. LATE SRI RANGAIAH
AGED ABOUT 57 YEARS
R/AT NO.91, 178TH CROSS
1ST BLOCK, RAJAJINAGAR
BANGALORE-560010.
... PETITIONER
(BY SRI H. LAKSHMINARAYANA, ADV.)
AND:
M/S. DEEPAK SAHAKARI BANK LTD.,
MAHALAKSHMIPURAM BRANCH
BANGALORE
REP. BY PUTTARAMANAIK
... RESPONDENT
(BY SRI M.S. BHAGWAT, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION U/S.397(1) R/W 401 CR.P.C. PRAYING TO SET-ASIDE
THE ORDER DATED 22/26-9-2009 PASSED BY THE XIII ACMM,
BANGALORE IN C.C.NO.17129/2005 WHICH IS CONFIRMED BY
THE JUDGMENT AND ORDER DATED 5-3-2010 PASSED BY THE
P.O. & ADDL. S.J. FTC-XV, BANGALORE IN CRL.A.805/2009 AND
ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 138 OF THE
NEGOTIABLE INSTRUMENTS ACT.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This revision petition under Section 397(1) read with Section 401 of Cr.P.C. is preferred against the order dated 22-9-2009 in C.C. No.17129/2005 on the file of the XIII Additional Chief Metropolitan Magistrate, Bangalore, and order dated 5-3-2010 in Crl.Appeal No.805/2009 on the file of the Additional Sessions Judge, Fast Track Court-XV, Bangalore, whereby the conviction and sentence of the petitioner under Section 138 of the Negotiable Instruments Act by the Magistrate has been confirmed.
2. For the discharge of his liability, the accused issued a cheque for Rs.2,76,000/- dated 10-2-2003 in favour of the complainant. On presentation, the cheque came to be dishonoured. After complying mandatory requirements, the complainant filed a complaint against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. Upon merits, by order 3 dated 22-9-2009, the accused has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and has been sentenced to pay fine of Rs.2,90,000/-. The Crl.Appeal No.805/2009 filed against the conviction and sentence came to be dismissed by an order dated 5-3-2010. Questioning the legality and correctness of both the order, this revision petition is preferred.
3. I have heard both the counsel for the petitioner/accused and the respondent/complainant. The only point that was canvassed by the learned counsel for the accused/revision petitioner during the course of arguments is that the accused had been permitted by the Magistrate to tender his evidence on affidavit like that of a complainant though under Section 145(1) of the Negotiable Instruments Act it is not permitted. The records in C.C. No.17129/2005 reveal that after the evidence of the complainant was concluded and the 4 statement of the accused came to be recorded, the accused has tendered his evidence by affidavit. Magistrate accepted it. According to the learned counsel for the petitioner, this illegality committed by the Magistrate goes to the root of the matter and hence sought to set-aside the orders of both the Courts below and to remand the matter to the trial Court for fresh disposal. The learned counsel has drawn my attention to Section 145 of the Negotiable Instruments Act and submitted that it permits the complainant to tender evidence by way of affidavit and that of his witnesses and the accused cannot be allowed to tender his evidence on affidavit. Section 145 of the Negotiable Instruments Act reads as follows:-
"145. Evidence on affidavit: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code."5
4. The learned counsel for the petitioner also placed reliance on the decision of Division Bench the Supreme Court reported in AIR 2010 SC 1402 in the case of M/S. MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH B. THAKORE wherein in Head Note (C) it is held as under:-
"(C) Negotiable Instruments Act (26 of 1881), S.141(1) - Evidence on affidavit by complainant or his witness - Omission by legislature to incorporate word "accused", with word "complainant" in S. 145(1) - Said word "accused" cannot be incorporated in S.145(1) by High Court - Further drawing analogy between evidence of complainant and accused in case of dishonoured cheque - Was not proper - Accused cannot be allowed to tender his evidence on affidavit."
5. In para 32 of the judgment, the Supreme Court observed as under:-
"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 6 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 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 7 with the complainant's evidence and to extend the same option to the accused as well."
6. Thus, the Supreme Court further observed that the High Court was in error in taking the view that on request made by the accused, the Magistrate may allow him to tender his evidence on affidavit and consequently set-aside the direction contained in paragraph ® of paragraph 45 of the High Court Judgment.
7. In view of the ratio laid down by the Supreme Court in the aforesaid decision and in view of language of Section 145 of the Negotiable Instruments Act, the judgment of conviction and sentence passed by the XIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.17129/2005 dated 22-9-2009 and in Criminal Appeal No.805/2009 dated 5-3-2010 on the file of the Additional Sessions Judge, Fast Track Court-XV, Bangalore, are liable to be set-aside. Hence, the following order:-
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The Revision Petition is allowed. The judgment of conviction and sentence passed by the XIII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.17129/2005 dated 22-9-2009 and in Criminal Appeal No.805/2009 dated 5-3-2010 on the file of the Additional Sessions Judge, Fast Track Court-XV, Bangalore, are set-aside. The matter is remanded back to the XIII Additional Chief Metropolitan Magistrate, Bangalore, for fresh disposal by reopening the case from the stage of defence evidence, keeping in view the law laid down by the Supreme Court and the observations made by this Court during course of the order.
The parties are directed to appear before the XIII Additional Chief Metropolitan Magistrate, Bangalore, on 15-4-2014 at 11.00 a.m. without waiting for further notice/summons from the XIII Additional Chief Metropolitan Magistrate, Bangalore, and the learned 9 Magistrate is directed to dispose of the matter expeditiously.
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