Karnataka High Court
Malenadu Areca Traders Co. Pvt Ltd vs Naveen Traders Sagar on 5 December, 2012
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Crl.A.496/2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5th DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.496/2009
BETWEEN
MALENADU ARECA TRADERS CO. PVT LTD
REP.BY ITS MANAGING DIRECTOR
ANIL ODEYAR, S/O.CHAMARAJA ODEYAR,
AGED ABOUT 45 YEARS,
A.P.M.C. YARD, SAGAR - AT/TQ,
SHIMOGA - DIST.
... APPELLANT
(By Sri. DAYANAND S PATIL, ADV.)
AND
NAVEEN TRADERS SAGAR
ITS OWNER M.KRISHNAMURHTY
S/O.RAMACHANDRAIAH
AGED ABOUT 56 YEARS
AZAD ROAD, 2ND CROSS, NEHARU NAGAR,
SAGAR - AT/TQ,SHIMOGA DIST,
... RESPONDENT
(By Sri./Smt : B S PRASAD & )
CRL.A FILED U/S 378(4) CR.P.C BY THE ADVOCATE FOR THE
APPELLANT PRAYING TO THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGEMENT AND ORDER DATED 16.3.2009 IN
C.C.NO.457/2004 PASSED BY THE ADDL.CIVIL JUDGE(JR.DVN.) & JMFC,
SAGAR - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S
138 OF N.I.ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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Crl.A.496/2009
JUDGMENT
The appellant has challenged the judgment and order acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act' for short) on a trial held by J.M.F.C., Sagar.
2. The appellant herein is the company represented by its Managing Director. The appellant filed a complaint before the trial court alleging that under the business transactions with the respondent-accused, a sum of Rs.1,64,340/- was due and towards repayment of the said amount, the accused had issued a cheque. When the said cheque was presented for encashment, it returned with an endorsement of 'insufficient funds'. The appellant issued a notice. There was no reply by the respondent and therefore the appellant filed a complaint on these facts.
3. During trial, the appellant examined PW1 and the documents Exs.P1 to P17 were marked. The statement of the respondent was recorded under -3- Crl.A.496/2009 Section 313 Cr.P.C. The respondent is examined as DW1 and the documents Exs.D1, D1(a) and D1(b) have been marked. The trial court after hearing the counsel for the parties and on appreciation of the material on record has acquitted the accused of the said charge. Aggrieved by the order, the present appeal has been filed.
4. I have heard the learned counsel for both the parties.
5. It is the submission of the learned counsel for the appellant that the procedure adopted by the trial court is illegal and it committed error in permitting the respondent to file an affidavit in lieu of examination-in-chief. On merits submits that under Section 139 of the Negotiable Instruments Act, the presumption arises and the said presumption is not rebutted on the basis of the material placed on record. Hence, he request to allow the appeal by setting aside the order of acquittal. -4- Crl.A.496/2009
6. The learned counsel for the respondent has supported the judgment and order of the trial court. Anyhow he submits that the presumption that arises has been rebutted on the basis of the material placed on record and further he relies upon the evidence of the accused to prove the rebuttal.
7. As could be seen from the records, the accused has filed an affidavit dated 7.10.2008 in lieu of the chief examination. This procedure adopted by the trial court permitting the respondent to file an affidavit is contrary to Section 145 of the Act. The said provision is extracted herein under for the sake of convenience:
Section 145(1): Notwithstanding
anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be 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- Crl.A.496/2009
8. As could be seen from the aforesaid provision, the evidence of the complainant could be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceedings.
9. This provision does not include an accused and therefore an accused cannot file an affidavit in lieu of his examination in chief. The procedure enumerated in the Evidence Act will have to be adopted by recording the chief examination of the accused and after recording his evidence, the cross- examination has to be done.
10. The Apex Court on this aspect of the matter has held in a decision reported in AIR 2010 SC 1402 in the case of M/S.MANDVI CO-OPERATIVE BANK LTD., Vs. NIMESH B.THAKORE that the acceptance or permitting the accused to file an affidavit in lieu of chief examination is inherently illegal and it would contravene the mandatory provisions of Section 145 of the Act. So, taking into consideration this aspect and the fact that the trial court has relied upon the -6- Crl.A.496/2009 evidence of the accused, the consequent order acquitting the respondent for the charge under Section 138 of the Act is illegal and has to be set aside.
11. In the result, the appeal is allowed. The judgment and order of acquittal of the respondent for the charge under Section 138 of the Act is set aside. The matter is remitted back to the trial court with a direction to record the evidence of the accused and dispose of the case in accordance with law.
To avoid the delay, both the parties are directed to appear before the trial court on 10.1.2013 without waiting for the summons. The trial court shall reconsider the evidence afresh and dispose of the case in accordance with law.
Sd/-
JUDGE ap/-