Bangalore District Court
Sri.B.Basavaraja vs Smt.Chandramma on 9 February, 2023
KABC010258822021
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 9th day of February 2023
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
CRIMINAL APPEAL No.984/2021
APPELLANT : Sri.B.Basavaraja
S/o Late.Basavaiah,
Aged about 67 years,
Residing at No.24/1,
Madaiah Kalamma Temple Road
and Maramma Temple Road,
Kote, Channapatna Town,
Ramanagara - 562 160.
(By Sri.Ramesha.D, Advocate)
-V/s-
RESPONDENT : Smt.Chandramma
W/o Late.Srinivas,
Aged about 61 years,
Residing at No.33, Dasappa
Building, 3rd Cross, Devegowda
Block, Audugodi,
Bengaluru - 560 030.
(By Sri.P.S., Advocate)
2 Crl.Apl.No.984/2021
JUDGMENT
This appeal has been filed by the accused u/s 374(3) of Cr.P.C., being aggrieved by the conviction judgment passed in C.C.No.25283/2018 dated 20.11.2021 by learned XIII ACMM, Bengaluru. Appellant was accused before the Trial Court filed by the respondent/complainant for an offence punishable u/s 138 of NI Act.
2. The parties will be referred as the complainant and accused as per their ranking given in the Trial Court.
3. The gist of the complainant's case is as under:
It is alleged in the complaint that herself and accused are relatives. The son of the complainant was expired in the accident and got compensation amount in her hand. In the year 2015, the accused approached the complainant and requested for loan for his financial problem and borrowed hand loan of Rs.7 lakhs by way of cash. The accused assured and promised to repay the said amount within 1 to 2 years. After completion of 1 year, the complainant approached the accused for repayment of the hand loan amount, but the accused sought more time and finally issued cheque bearing No.047049 dated 3 Crl.Apl.No.984/2021 13.07.2018 for Rs.7 lakhs, drawn on Textile Co-
operative Bank, Adugodi Branch, Bengaluru, in favor of the complainant towards repayment of the said loan amount. The complainant presented the said cheque for encashment through her banker i.e., Vijaya Bank, Adugodi Branch, Bengaluru, but to the surprise of the complainant the said cheque was dishonoured with an endorsement dated 19.07.2018 on the ground of account closed. Immediately, the complainant contacted and intimated the said fact, but the accused neglected and failed to pay the said cheque amount. Thereafter, the complainant on 27.07.2018, got issued a legal notice to the accused by way of RPAD through his Counsel demanding the payment within 15 days. The said notice was sent through RPAD with a shara as 'intimation delivered"
"not claimed" and the same was returned on 01.08.2018. Intentionally the accused has not received the notice. Accused has neither made any payment nor issued any reply. According to the complainant, the accused has committed an offence u/s 138 of NI Act. Therefore, the complainant has filed the complaint against the accused on 23.08.2018.4 Crl.Apl.No.984/2021
4. As per the Trial Court records, in pursuance of service of summons, accused appeared and got enlarged on bail. Plea read over and explained to the accused on 19.03.2019 and he pleaded not guilty and claims to be tried.
5. In order to prove the guilt of accused, complainant has examined PW1 and got marked Ex.P1 to P6. Accused statement u/s 313 of Cr.P.C. was recorded by explaining the incriminating circumstances appearing in the evidence of complainant. Appellant/accused has denied all those circumstances. To disprove the case of the complainant, the accused examined the Bank Manager of Textile Co-operative Bank as DW1 and got marked Ex.D1 to 3. Accused also examined himself as DW2 and got marked Ex.D4 to 9.
6. After hearing both sides and considering the evidence on record both oral and documentary, the learned Trial Judge has convicted the appellant/accused and passed the conviction judgment.
7. Being aggrieved by the said judgment accused/ appellant has questioned the legality of the judgment in this appeal. The accused has challenged the 5 Crl.Apl.No.984/2021 judgment on several grounds. According to him, the complainant has not issued legal notice to the correct address of the accused. The accused opened the account in the Textile Co-operative Bank, Adugodi Branch, in the year 1997. Subsequently, he shifted his business to Chennapatna and his account in the said Bank at Adugodi Branch is in-operative since 2004. In order to prove the said fact, the accused examined the Bank Manager. Since the account was closed in the year 2004, the question of issuing the cheque by the complainant to the accused does not arise. The complainant being the relative of the accused use to visit the house of accused and without the knowledge of the accused and behind his back, the complainant had stolen some old cheques, by filling the said cheques and forging the signatures of the said cheque, presented for encasment without the knowledge of the accused. The said fact came to the knowledge of the accused when the Police informed about issuing of warrant against him in CC No.25283/2018. The accused always use to sign in English language that could be seen from the specimen signatures card, current account opening form, sole proprietorship letter and in other documents produced at Ex.D1 to 3. The complainant 6 Crl.Apl.No.984/2021 forged the signature of the accused in Kannada language in the alleged cheque, which is not the signature of the accused. The complainant has no source of income and stated that he has paid Rs.7 lakhs to the accused. To substantiate the same, she has not produced any documents. The evidence placed on record is sufficient to disprove the case of the complainant. Among other grounds, prayed to set aside the Trial Court's conviction judgment and prayed to acquit the accused.
8. In pursuance of the service of notice, the respondent appeared through his counsel.
9. The entire records of CC No.25283/2018 have been called for and perused.
10. The learned Counsel for the appellant/accused filed written arguments and has virtually reiterated the grounds urged in the appeal memo. He referred several judgments in his written arguments but not submitted the citations along with written arguments. Further it is submitted that the evidence of accused adduced by filing the affidavit. Hence, prayed to set-aside the conviction judgment and sentence passed by the trial Court by allowing the appeal.7 Crl.Apl.No.984/2021
11. Per contra, the learned Counsel for respondent also submits written arguments and justified the findings recorded the Trial Court. The Trial Court taking into consideration the oral and documentary evidence produced by the complainant and accused passed the conviction judgment. The ingredients of Sec.138 and 142 of Cr.P.C., are duly complied. Absolutely, no grounds made out to inference with the findings recorded by the Trial Court. Hence, prayed to dismiss the appeal by confirming conviction judgment passed by the Trial Court. In support of his arguments placed reliance on the following citations:-
1. Cri.App.No.867/2016 (SC) Sampelly Satya narayanrao Vs. Indian Renewable Energy Develolpment Agency Limited)
2. 2017 (5) KCCR 571 (Arjun Vs E Shekar)
3. Cri.App.No.1545/2020 (SC) Uttamram Vs. Devinder Singh Hudan and another)
12. In view of the arguments submitted in this case the following points that arise for my consideration are:
1. Whether the Trial Court has committed error permitting the accused to file evidence by way of affidavit?
2. Whether the judgment of Trial Court calls 8 Crl.Apl.No.984/2021 for interference by this Court?
3. What order?
13. My answer to the above points are as under:
Point No.1 & 2 : In the affirmative Point No.3 : As per final order for the following;
REASONS
14. Point No.1:- In order to prove her case, complainant/ Smt.Chandramma examined as PW1 on oath by filing affidavit and has reiterated the allegations made in the complaint. She got marked documents Ex.P1 to 6. Ex.P1 is the cheque, Ex.P2 is the Bank endorsement, Ex.P3 is the copy of legal notice, Ex.P4 is the postal receipt, Ex.P5 is the unserved postal cover, Ex.P6 is the complaint.
15. In order to prove the defence accused examined the Bank Manager of Textile Co-operative Bank one Sri.Raju H.S. as DW1 and got marked Ex.D1 to 3.
16. Accused also examined himself as DW2. The examination in chief is filed by the accused by way of affidavit and has reiterated the defence taken in the cross examination of PW1 and got marked Ex.D4 to
9.
This is all the oral and documentary evidence placed on record by the complainant and accused in 9 Crl.Apl.No.984/2021 support of their respective contentions.
17. I have gone through the judgments relied on by the learned Counsel for respondent and kept in mind the view taken the said judgments while re- appreciating the evidence and coming to the final conclusion. I respectfully agree with the views taken in the said judgments.
18. Before the considering the arguments submitted by the both side on merits it is necessary to note the procedure followed by the Trial Court while recording the evidence of accused.
19. In the present case the evidence of accused by way of affidavit. Recording the evidence of accused by way of affidavit is against the law laid down by Hon'ble Apex Court of India and the judgment passed by the Trial Court on the basis of affidavit of accused is liable to be set aside. It is useful to refer the judgment of Hon'ble Apex Court delivered in Mandovi Co-Op Bank Limited Vs. Nimesh B Thakore.
20. As it could be seen from the Trial Court records the Trial Court Judge has convicted the accused by accepting the affidavit evidence of the accused. In a judgment of Mandovi Co-Op Bank Limited Vs. Nimesh B Thakore the Hon'ble Apex Court of India has held 10 Crl.Apl.No.984/2021 that u/s 145 of NI Act accused cannot be permitted to file affidavit in lieu of examination in chief. Further in that case it has held that the accused has no right to give evidence on affidavit.
21. In view of the ratio laid down in the above case by Hon'ble Apex Court the Hon'ble High Court of Karnataka has remanded the case to the Trial Court to cure the defect. It is useful refer the orders passed in Cri.Appeal No.867/2012 (Girija Shedthy Vs. Ganapati Bhat), Cri.Appeal No.633/2012 (O M Lingappa Vs.Smt.Samyukta Murlidhar and another).
22. At this juncture it is necessary to observe that some of the Hon'ble High Courts have held that accused cannot be permitted to file affidavit in lieu of examination in chief. As against the said views some of the Hon'ble High Courts have held that allowing the accused to give his evidence on affidavit will not cause any prejudice to complainant. There are divergent opinions expressed by different benches of Hon'ble High Courts including Hon'ble High Court of Karnataka.
23. In view of such divergent opinions as to recording the evidence of accused by way of affidavit it is appropriate the to refer the judgment given by 11 Crl.Apl.No.984/2021 the Hon'ble High Court of Punjab and Hariyana in a decision delivered in Rajni Dhingra vs Sanjeev Chugh in CRM-M-41179 of 2019=2019 SCC OnLine P & H 2464. For the sake convenience the relevant paragraphs of the said judgment is extracted and reproduced here:-
"5. After discussing the law on the point, the Apex Court did not agree with observations of High Court allowing permission to accused to lead evidence on affidavit and observed in para 52 as follows:-
"52. In light of the above we have no hesitation in holding that the High Court was in error in taking the view, that on a request made by the accused the magistrate may allow him to tender his evidence on affidavit and consequently, we set aside the direction as contained in sub-paragraph
(r) of paragraph 45 of the High Court judgment.
The appeal arising from SLP (Crl.) No. 3915/2006 is allowed."
6. The above observations of the Apex Court in case of Mandvi Cooperative Bank Ltd. (supra) have not been set aside or dissented in case of Indian Bank Association (supra), wherein in para 12 a reference was made to above observations as follows:-
"12. The scope of Section 145 came up for consideration before this Court in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, and the same was explained in that judgment stating that the legislature provided for the complainant to give his evidence on affidavit, but did not provide the same for the accused. The Court held that even though the legislature in their wisdom did not 12 Crl.Apl.No.984/2021 deem it proper to incorporate a word "accused"
with the word "complainant" in Section 145 (1), it does not mean that 5 of 6 the Magistrate could not allow the complainant to give his evidence on affidavit, unless there was just and reasonable ground to refuse such permission."
7. The Apex Court in case of Indian Bank Association (supra) was dealing with the issue of laying down appropriate guidelines/directions to be followed by the Courts while trying complaints under Section 138 of the Negotiable Instruments Act and the issue before the Apex Court was to ensure expeditious disposal of such cases. Though, reference to observations of the Apex Court in case of Mandvi Cooperative Bank Ltd.(supra) was made in para 12 of the judgment but as already discussed the law settled by the Apex Court in that case is clear and has not been set aside or dissented so far. Even that was not in issue before the Apex Court in case of Indian Bank Association (supra).
8. In view of clear proposition of law as laid down in Mandvi Cooperative Bank Ltd. (supra) by Hon'ble Apex Court, the petitioner being an accused, who is facing trial in complaint under the provisions of Negotiable Instruments Act, is not competent to tender his evidence through affidavit and learned trial Court has not committed any error while declining permission to this effect to petitioner."
24. Having regard to the view taken in the above judgment and in view of clear law as laid down in Mandvi Co-Op Bank Ltd. by Hon'ble Apex Court, the accused, who is facing trial in complaint under the provisions of Negotiable Instruments Act, is not 13 Crl.Apl.No.984/2021 competent to tender his evidence through affidavit. No doubt there are divergent opinions in interpreting the law laid by the Hon'ble Apex Court in above referred case Mandvi Co-Op Bank Ltd. has not been set aside or dissented so far. Even that was not in issue before the Apex Court in case of Indian Bank Association. Under such circumstances, in the opinion of this Court to be safer side and to avoid causing inconvenience to the parties to the litigation, it just and proper to cure the defect committed during the trial by the Trial Court. Therefore, without considering any other aspects on merits it is just and proper to remand the matter to the Trial Court for recording the evidence of accused in accordance with law laid down by Hon'ble Apex Court of India in Mandvi Co-op Bank Ltd. case. For the reasons discussed above, I answer point No.1 in the affirmative.
25. Point No.2:- In view of my findings on point No.2, in the considered opinion of this Court, permitted the accused by the Trial Court Judge to file affidavit in lieu of examination in chief and on the basis of that affidavit convicted the accused is against the law laid down by Hon'ble Apex Court of 14 Crl.Apl.No.984/2021 India in Mandvi Co-op Bank Limited. Therefore, this Court is of the considered opinion that there is necessary to interfere with the findings of the Trial Court. Hence, I answer point No.2 in the affirmative.
26. Point No.3:- In view of my finding on point No.1 and 2, the appeal filed by the appellant is liable to be allowed. Accordingly, I proceed to pass the following:
ORDER Appeal filed by the accused/ appellant u/s 374(3) is hereby allowed.
The Judgment of conviction passed in CC No.25283/2018 dated 20.11.2021 by learned XIII ACMM, Bengaluru is hereby set aside.
The matter is remanded back to Trial Court with a direction to readmit the CC No. 25283/2018 in the Register of Criminal cases and to record the evidence of accused in accordance with law laid down by Hon'ble Apex Court in Mandvi Co-op Bank Limited case. The complainant is permitted to lead rebuttal evidence if necessary.
The Trial Court has to 15 Crl.Apl.No.984/2021 independently appreciate the material placed before it and give finding without influencing the observation made in this appeal.
The case of the year 2018 and therefore, the parties to the case are directed to co-operate with the Trial Court for expeditious disposal of the case within the time fixed by the Trial Court. The complainant and accused are directed to appear before the Trial Court on 10.03.2023 without expecting the notice/summons from the Trial Court.
The accused/appellant is entitled for refund of amount of fine deposited before the Trial Court if any.
Office to send back the Trial Court
records along with copy of this
judgment.
(Dictated to Judgment Writer, transcribed by her, taken print out corrected by me and then pronounced in the Open-Court on the 9th day of February 2023) (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge (CCH-64), Benglauru City