O M Lingappa vs Smt. Samyukta Muralidhar on 6 February, 2014

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Karnataka High Court

O M Lingappa vs Smt. Samyukta Muralidhar on 6 February, 2014

Bench: N.Ananda

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  IN THE HIGH COURT OF KARNATAKA AT BANGALORE
       DATED THIS THE 6TH DAY OF FEBRUARY 2014
                       BEFORE
           THE HON'BLE MR.JUSTICE N.ANANDA
                  CRL.A.NO.633/2012

BETWEEN:

O.M.LINGAPPA
S/O MARALU SIDDAPPA
AGED ABOUT 89 YEARS
NO.100, RAILWAY PARALLEL PARK,
KUMARAPARK WEST,
BANGALORE.                         ... APPELLANT

(BY SRI ARVIND M. NEGLUR, ADV.)

AND:

1. SMT.SAMYUKTA MURALIDHAR
W/O K.M.MURALIDHAR
NO.1306, 4TH BLOCK, 1 STAGE,
HBR LAYOUT, BANGALORE

2. K.M.MURALIDHAR
MANAGING DIRECTOR
M/S SOUNDARYA HOTELS PVT. LTD.,
SHOP NO.10, 11 & 12, GROUND FLOOR,
PREMISES NO.14 (OLD NO.11)
ST.MARK'S PLAZA, ST. MARK'S ROAD,
BANGALORE-01                   ... RESPONDENTS

(BY SRI.SIDDARTH B. MUCHANDI, ADV.)

     THIS CRL.A. IS FILED U/S 378(4) CR.P.C. PRAYING
TO SET ASIDE THE JUDGMENT OF ACQUITTAL PASSED
BY XX ADDL. CMM, BANGALORE CITY DATED 11.4.2011 IN
C.C.NO.27604/03 ACQUITTING THE RESPONDENT /
ACCUSED FOR THE O/P/U/S 138 OF N.I. ACT.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                    JUDGMENT

For the reasons stated in I.A.1/12, delay of 367 days in filing the appeal is condoned.

2. The matter is taken up for consideration on merits.

3. The learned Magistrate has acquitted the respondent - accused of an offence punishable under Section 138 of Negotiable Instruments Act (for short "N.I. Act") by taking into consideration affidavit evidence filed by the accused and his witness. In the decision reported in (2010) 3 SCC 83 (in the case of Mandvi Co- operative Bank Limited -vs- Nimesh B. Thakore) the Supreme Court has held that under Section 145(1) of the Act, the accused cannot be permitted to file affidavit evidence. Therefore, the impugned judgment cannot be sustained. In the result, I pass the following:

ORDER The appeal is allowed. The impugned judgment is set aside. The matter is remanded to the learned Magistrate. The learned Magistrate shall record the

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evidence of accused in accordance with law. Complainant is at liberty to adduce rebuttal evidence.

The learned Magistrate shall decide the case on merits within six months from the date of receipt of copy of this order. The office is directed to forth with communicate a copy of this order to trial Court.

Sd/-

JUDGE RS/*

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