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Bangalore District Court

G M Poornima vs Radhamma on 8 February, 2024

KABC010223852022




IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
   SESSIONS JUDGE (CCH-64) AT BENGALURU
      Dated this the 8th day of February 2024

                   : PRESENT :
             Sri.A.V.Patil, B.Com., LL.B.,
        LXIII ADDL.CITY CIVIL & SESSIONS
            JUDGE, BENGALURU CITY.
         CRIMINAL APPEAL No.959/2022
APPELLANT :          Smt.G.M.Poornima
                     W/o B.Basavaraj,
                     Aged about 42 years,
                     Residing at No.54, 1st Cross,
                     1st Main, Sharada Nagar,
                     Near Chaitanya School,
                     Konanakunte, Bengaluru - 560 062
                     (By Sri.M.Prabhu, Advocate)

                         -V/s-

RESPONDENT :         Smt.Radhamma
                     W/o Munivenkatappa,
                     Aged about 59 years,
                     Residing at No.325,
                     Near Anjaneya Temple,
                     Doddakallasandra,
                     Kanakapura Main Road,
                     Bengalouru - 560 062.

                     (By Sri.H.S.Kumara, Advocate)
                              2              Crl.Apl.No.959/2022



                    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 CC No.30116/2021 dated 20.07.2022 by learned 21st 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:-

The accused is known to the complainant since many years. With that acquaintance, during the first week of November-2018 accused demanded hand loan of Rs.4,00,000/- for her domestic necessity. Considering the request of the accused, the complainant had paid an amount of Rs.4,00,000/- by way of cash on 05.11.2018 as hand loan. After repeated requests, on 16.04.2021, the accused had issued two cheques bearing No.010015 and 010016 dated 16.06.2021 for Rs.2,00,000/- each drawn on Cauvery Grameena Bank, Havanoor Extension 3 Crl.Apl.No.959/2022 Branch, Hesaraghatta Road, Bengaluru, towards repayment of the hand loan amount. Accused also agreed to pay interest @ 12% per annum. The complainant presented the said cheque for encashment on 30.06.2021 through her Banker i.e., Canara Bank, Konankunte Branch, Bengaluru. To the shock of the complainant, the said cheques were dishonoured with an endorsement 'no such account' and to that effect received a Memo dated 01.07.2021. Thereafter, on 13.07.2021, the complainant got issued a legal notice to the accused through RPAD to the residence and factory address of the accused. The notice sent to the factory address was duly served on 15.07.2021 and the notice sent to the residential address was returned as addressee left the premises. In spite of service of notice, the accused had failed to repay the amount covered under the cheques within stipulated time. However, the accused got issued reply on 29.07.2021, which was served upon the complainant on 31.07.2021. According to the complainant, the accused had committed the offence u/s 138 of NI Act. Therefore, the complainant has filed the complaint against the accused on 11.08.2021.

4. As per the Trial Court records, in pursuance of 4 Crl.Apl.No.959/2022 service of summons, accused appeared and got enlarged on bail. Plea read over and explained to the accused on 02.03.2022 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 P8. On 02.03.2022 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. In support of her defence accused examined herself as DW1 and got marked documents at Ex.D1 to 8.

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 judgment on several grounds. According to the appellant/accused, the Trial Court has not considered the documents in her evidence and list of 5 Crl.Apl.No.959/2022 witnesses filed by the accused on 08.06.2022. The complainant not given any amount to the accused to the tune of Rs.4,00,000/-. The complainant failed to produce any Books of Accounts or any other proof to show that he has got so much money with him. The Trial Court failed to notice that originally in terms of Sec.269(SS) of Income Tax Act, any advance taken by way of loan. The complainant has obtained the disputed cheques unlawfully and subsequently misused the said cheques and also suppressed the true facts and adduced false evidence before the Court to convict the accused. The Trial Court passed the sentence to pay fine of Rs.4,25,000/- as against the cheque amount of Rs.4,00,000/- is bad in law. Sec.29(2) of Cr.P.C., does not empower the Magistrate of First Class to impose the above fine exceeding on this ground impugned conviction order is bad in law. 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 her Advocate.

9. The entire records of CC No.30116/2021 have been called for and perused.

10. The learned Counsel for the appellant/accused argued and reiterated the grounds urged in the appeal memo. Further the learned Counsel for the appellant argued that the accused evidence is filed by way of affidavit which is not permissible under law. The Hon'ble Apex Court has held that the evidence of accused shall have to be adduced in the form of oral evidence and filing of affidavit of examination-in-chief of accused is not permissible under law. The Trial Court has recorded the accused evidence by way of affidavit and therefore, the entire trial is liable to be set-aside. Among other grounds, the learned Counsel for the appellant prayed to remand the matter with a direction to the Trial Court to record the oral evidence of accused. In support of the arguments, placed the following citations;

1. Application No.8420/2021 (Ramdas Tureha Vs. State of UP and another)

2. Crl.Apl.No.3915/2006 (M/s Mandvi Co- op Bank Ltd. Vs. Nimesh B. Thakore)

11. The learned Counsel for the appellant also filed memo for citations by referring 3 citations but not furnished the copies of the said citations.

12. Per contra, the learned Counsel for the complainant/respondent has argued and justified the 7 Crl.Apl.No.959/2022 findings recorded by the Trial Court. According to him, the Trial Court has properly appreciated the evidence on record and convicted the accused. The Trial Court has properly held that the ingredients of Sec.138 and 142 of NI Act are duly complied with by the complainant. Mere recording the accused evidence by way of affidavit itself is not sufficient to remand the matter. No valid grounds made out by the appellant to set-aside the findings recorded by the Trial Court. Hence, prayed to confirm the judgment by dismissing the appeal.

13. 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 for interference by this Court?

3. What order?

14. 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

15. Point No.1:- In order to prove her case, complainant Smt.Radhamma, examined as PW1 on 8 Crl.Apl.No.959/2022 oath and has reiterated the allegations made in the complaint. He got marked documents Ex.P1 to 8. Ex.P1 and 2 are the original cheques, Ex.P3 and 4 are the Return Memos, Ex.P5 is the legal notice, Ex.P6 is the postal receipt, Ex.P7 is the returned RPAD cover, Ex.P8 is the reply notice.

16. In order to disprove the case of the complainant, accused/ Smt.G.M.Poornima examined as DW1. The examination in chief is filed by the accused by way of affidavit and got marked Ex.D1 to 8. Ex.D1 is the tax invoice, Ex.D2 is the legal notice, Ex.D3 is the postal receipt, Ex.D4 is the postal acknowledgment, Ex.D5 and 6 are the gold ornaments pledged receipts, Ex.D7 is the Sale Agreement Deed, Ex.D8 is the registered Sale Deed.

17. This is all the oral and documentary evidence placed on record by the complainant and accused in support of their respective contentions.

18. I have gone through the judgments relied on by the learned Counsel for appellant and kept in mind the view taken the said judgments while re- appreciating the evidence and coming to the final conclusion.

19. Before the considering the arguments submitted 9 Crl.Apl.No.959/2022 by the both side on merits it is necessary to note the procedure followed by the Trial Court while recording the evidence of accused.

20. In the present case the evidence of accused is recorded 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 not in accordance with law laid down by Hon'ble Apex Court delivered in Mandovi Co- Op Bank Limited Vs. Nimesh B Thakore.

21. 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 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.

22. 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. 10 Crl.Apl.No.959/2022 Ganapati Bhat), Cri.Appeal No.633/2012 (O.M. Lingappa Vs. Smt.Samyukta Murlidhar and another).

23. 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.

24. 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 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 11 Crl.Apl.No.959/2022 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 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."

25. Having regard to the view taken in the above judgment and in view of clear law as laid down in Mandvi Cooperative Bank Ltd. by Hon'ble Apex Court, the accused, who is facing trial in complaint under the provisions of Negotiable Instruments Act, is not 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 Cooperative 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 13 Crl.Apl.No.959/2022 law laid down by Hon'ble Apex Court of India in Mandvi Cooperative Bank Ltd. case by securing the presence of the accused. For the reasons discussed above, I answer point No.2 in the affirmative.

26. 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 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.

27. 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.30116/2021 dated 20.07.2022 by learned XXI ACMM, Bengaluru is hereby set aside.

The matter is remanded back to Trial Court with a direction to readmit the CC No.30116/2021 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 independently appreciate the material placed before it and give finding without influencing the observation made in this appeal.

The case of the year 2021 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 19.03.2024 without expecting the notice/summons from the Trial Court.

The accused/appellant is entitled for refund of amount of fine deposited 15 Crl.Apl.No.959/2022 before the Trial Court if any.

           Office to send back the Trial Court
     records     along   with    copy     of   this
     judgment.

(Dictated to Stenographer Grade-I, transcribed by her, taken print out corrected by me and then pronounced in the Open-Court on the 8th day of February 2024) (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge (CCH-64), Benglauru City