V S Kumar S/O Venkataramanappa vs Smt Chitra W/O Sunil Pillai on 27 January, 2014

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Karnataka High Court

V S Kumar S/O Venkataramanappa vs Smt Chitra W/O Sunil Pillai on 27 January, 2014

Bench: N.Ananda

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

    DATED THIS THE 27TH DAY OF JANUARY 2014

                       BEFORE
        THE HON'BLE MR.JUSTICE N.ANANDA

           CRIMINAL APPEAL NO.1584 OF 2006

Between:
V.S.Kumar
S/o Venkataramanappa
Aged about 35 years
R/at No.23 J, 4th Cross
Magadi Road
Bangalore                                 ... Appellant

(By Sri.P.Nehru, Advocate)

And:
Smt. Chitra
W/o Sunil Pillai
Aged about 29 years
R/at No.9, Madhumathi Nilyam
3rd Cross, 3rd Main
Iyyappanagara
Devsandra
Krishnarajpuram
Bangalore                             ...    Respondent

(By Sri.N.J.Ramesh, Advocate)
                          *****
     This Criminal Appeal is filed under Section 397
Cr.P.C praying to modify the order dated 16.12.2005
passed by the Addl. S.J.& P .O., FTC-IV, Bangalore City
in Crl.A No.125/2005 and to uphold the order passed
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by the XXII ACMM, B'lore in C.C.No.35705/2000 dated
17.1.2005.

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


                      JUDGMENT

The respondent (accused) was convicted by the Trial Court for an offence punishable under Section 138 of Negotiable Instruments Act. Therefore, he was before the First Appellate Court. The learned Judge of the First Appellate Court has held that statutory notice was issued after a period of 15 days from the date of receipt of intimation of dishonour of cheque and acquitted the accused. Therefore, the complainant is before this Court.

2. I have heard the learned counsel for parties.

3. The Trial Court has not recorded a finding on the date on which the intimation of dishonour was sent to the complainant by his banker (Syndicate Bank, Magadi Road Branch, Bangalore) 3

4. The learned Trial Judge has accepted the affidavit evidence of the accused. 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 the right to give evidence on affidavit is not available to the accused. Therefore, the impugned judgment so also the judgment passed by the Trial Court, cannot be sustained.

3. In the result, I pass the following:

ORDER The appeal is accepted. The judgment of the First Appellate Court and the Trial Court are set aside. The matter is remanded to the Trial Court.

The Trial Court shall record the evidence of accused in accordance with law. The Trial Court shall record a finding on the date on which the intimation of dishonour of cheque was sent to complainant by his banker. The complainant is at liberty to adduce rebuttal evidence.

The Trial Court shall decide the case within a period of three months from the date of receipt a copy of this judgment.

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

Sd/-

JUDGE AHB

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