Sri. T M Shivayogi Swamy vs Sri. T Yesudas on 25 February, 2014

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Karnataka High Court

Sri. T M Shivayogi Swamy vs Sri. T Yesudas on 25 February, 2014

Bench: N.Ananda

                           1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

   DATED THIS THE 25TH DAY OF FEBRUARY 2014

                        BEFORE
        THE HON'BLE MR.JUSTICE N.ANANDA

           CRIMINAL APPEAL NO.992 OF 2010

Between:
Sri.T.M.Shivayogi Swamy
Aged about 59 years
R/at No.0.0.106, Ayyappa Street
Veerabhadrappa Road
M.S.Nagar Post
Bangalore - 560 049
Presently residing at
No.70, 1st Cross
Manjunathanagar
Behind Bluebell Public School
Hosa Road, Electronic City
Bangalore - 560 010                 ...    Appellant

(By Sri.K.Raghavendra, Advocate)


And:
Sri.T.Yesudas
Aged about 59 years
R/o No.106, Ayyappa Street
Veerabhadrappa Road
M.S.Nagar Post
Bangalore - 560 049                ...    Respondent

(By Sri.S.D.N.Prasad, Advocate)
                         *****
                               2

      This Criminal Appeal is filed under Section 378(4)
Cr.P.C praying to set aside the judgment dated
16.7.2010 passed by the Additional Sessions Judge and
Presiding Officer, FTC-III, Mayo Hall Unit, Bangalore in
Crl.A.No.25075/2009 and uphold the judgment dated
9.7.2009 passed by the XVII ASCJ and XXV ACMM,
Mayo Hall Unit, Bangalore in C.C.No.11412/2006 -
convicting    the   respondent/accused      for  offence
punishable under Section 138 Negotiable Instruments
Act.

     This Appeal coming on for hearing this day, the
Court delivered the following:-


                      JUDGMENT

The learned Trial Judge convicted the accused for an offence punishable under Section 138 of Negotiable Instruments Act. Therefore, accused was before the First Appellate Court. The learned Judge of First Appellate Court has acquitted accused. Therefore, the complainant is before this Court.

2. After going through records, I find that the learned Trial Judge has accepted affidavit evidence filed by accused. The learned Judge of First Appellate Court has not noticed this error.

3. In a decision reported in (2010) 3 Supreme Court Cases 83 (in the case of MANDVI COOPERATIVE BANK LIMITED vs. NIMESH B. THAKORE), the Supreme Court has held that under Section 145 of the Negotiable Instruments Act, accused cannot be permitted to file affidavit in lieu of examination-in-chief. The Supreme Court has held that the accused has no right to give evidence on affidavit. The affidavit evidence of accused cannot be treated as evidence to accept the defence put forth by him. Therefore, the impugned judgments cannot be sustained.

4. In the result, I pass the following:

ORDER The appeal is accepted. The impugned judgments are set aside. The matter is remanded to the learned Trial Judge for recording evidence of accused in accordance with law. The complainant is permitted to lead rebuttal evidence.

The learned Trial Judge shall decide the case on merits within a period of six months from the date of receipt of copy of this judgment. The office is directed to forthwith send back the records along with a copy of this judgment.

Sd/-

JUDGE AHB

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