Karnataka High Court
K Venkataswamy vs Linga Shetty on 11 December, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.1131/2010
BETWEEN:
K VENKATASWAMY
S/O LATE VENKATARAMAIAH
AGED ABOUT 50 YEARS
NO.12, MARIYAPPANAPALYA
GNANABHARATHI POST
BANGALORE - 560 056. ... APPELLANT
(BY SRI MANJUNATH B.R., ADVOCATE)
AND:
LINGA SHETTY
S/O NANJAPPA SHETTY
AGED ABOUT 63 YEARS
R/O NO.17, 'OURLARA', II 'A' CROSS
NAGARABHAVI, BANGALORE - 560 072. ... RESPONDENT
(BY SRI S B TOTAD, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378(4) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED 20.09.2010
PASSED BY XXII ACMM & XXIV ADDL. SMALL CAUSES JUDGE
AT BANGALORE CITY IN C.C.NO.28748/2007, ACQUITTING THE
RESPONDENT-ACCUSED FOR AN OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
The learned trial Judge has acquitted respondent (hereinafter referred to as 'accused') for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). Therefore, appellant (hereinafter referred to as 'complainant') is before this court.
2. I have heard learned counsel for parties and I have gone through the impugned judgment.
3. The learned trial Judge considering the evidence adduced by complainant and affidavit evidence of the accused has acquitted accused.
4. In a 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:-
"J. Negotiable Instruments Act, 1881 - S.145(1) - Right to give evidence on affidavit - Not available to accused - When legislature clearly used the expression "evidence of the complainant may be given by him on affidavit", 3 court cannot add word "accused" in it - Moreover, there is basic difference between nature of evidence of complainant and that of accused in case of dishonoured cheque and therefore by drawing the same analogy it cannot be held that Magistrate can allow accused also to give evidence on affidavit."
5. In the instant case, learned trial Judge has accepted the affidavit filed by accused in lieu of examination-in-chief. In view of aforestated judgment, accused should have been called upon to tender his evidence. The trial court ought not have considered affidavit evidence of accused. Therefore, the impugned judgment cannot be sustained.
6. In the result, I pass the following:-
ORDER The appeal is accepted. The impugned judgment is set aside. The matter is remanded to learned Magistrate for reconsideration from the stage of closure of evidence of complainant. The accused is at liberty to lead evidence in accordance with law. The complainant is at liberty to lead 4 rebuttal evidence, if he so desires. The learned Magistrate shall decide the case within a period of six months from the date of receipt of a copy of this judgment. The parties shall appear before the learned Magistrate on 10.01.2014. The trial court need not issue summons for appearance of parties. Office is directed to forthwith send back records along with a copy of this judgment.
Sd/-
JUDGE SNN.