Karnataka High Court
Sri Shivakumar vs B Ramaiah on 19 February, 2013
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Crl.A.528/2011
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19th DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.528/2011
BETWEEN
SRI.SHIVAKUMAR,
S/O. MURTHY,
AGED ABOUT 48 YEARS,
R/O.NO.42, 12TH CROSS,
BOVIPALYA,
MAHALAKSHMIPURA,
BENGALURU.
... APPELLANT
(BY SRI.MOHD.USMAN SHAIKH, ADV.)
AND
B.RAMAIAH
S/O LATE BASAPPA
AGED ABOUT 46 YEARS,
NO.623, 1ST FLOOR,
9TH MAIN ROAD,
VINAYA MARGA,
SIDDARTHA LAYOUT,
MYSORE- 570 011.
... RESPONDENT
(BY SRI.HARISH V.R., ADV.)
THIS CRL.A. FILED U/S.378(4) CR.P.C. PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT DATED 6.8.2010 PASSED BY THE XVIII ACMM & XX
ASCJ., BANGALORE, IN C.C.NO.30105/06-ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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Crl.A.528/2011
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 Additional Chief Metropolitan Magistrate, Bangalore.
2. The facts reveal that the appellant filed a complaint before the trial Court alleging that he has advanced a sum of Rs.18,00,000/- to the respondent on different dates and towards repayment of the said sum with interest, the respondent is said to have issued a cheque for Rs.22,00,000/- and when the said cheque was presented for encashment, it returned with an endorsement of insufficient funds. The appellant issued a notice and as payment was not made, a complaint came to be filed before the trial Court under Section 200 Cr.P.C. to initiate proceedings against the respondent for the offence under Section 138 of the Act. -3- Crl.A.528/2011
3. During the trial, the appellant was examined as PW1 and in his evidence the documents Exs.P1 to P15 were marked. Statement of the respondent was recorded under Section 313 Cr.P.C. The respondent is examined as DW1 and the documents Exs.D1 to D5 are marked in his evidence. The trial Court acquitted the respondent for the said charge, hence this appeal.
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 inherently wrong and it has accepted the affidavit of the respondent in lieu of the chief-examination which is not permitted in law. Anyhow, the counsel for the respondent has supported the order of the trial Court.
6. As could be seen from the deposition of the respondent and the affidavit which has been filed -4- Crl.A.528/2011 in lieu of the chief-examination, the procedure adopted by the trial Court is contrary to Section 145 of the Act. Perusal of Section 145 of the Act reveals that 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 or trial. Thereby, perusal of the provision reveals that it is only a statutory right of the complainant to file an affidavit. This right has not been conferred on the accused and in the absence of any such statutory right, the accused cannot filed an affidavit in lieu of chief- examination. That apart, in a judgment reported in AIR (2010)3 Supreme Court Cases 83 in the case of MANDVI CO-OPERATIVE BANK LIMITED Vs NIMESH B.THAKORE it is held, "If the legislature in their wisdom did not think it proper to incorporate a word 'accused' with the word 'complainant' in Section 145(1)...", it was not open to the High Court to fill up the self- perceived blank." The Apex Court held that the -5- Crl.A.528/2011 Court cannot permit the accused to file an affidavit in lieu of chief-examination. Therefore, acceptance of affidavit of the respondent by the trial Court in lieu of chief-examination is inherent difficulty in the procedure adopted and the consequent order is illegal.
7. In the result, the appeal is allowed by setting aside the order impugned. 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.
The appellant is at liberty to file an application under Section 311 Cr.P.C., for recording additional evidence and if he makes out a ground to allow the application, the trial Court is at liberty to pass appropriate orders and to proceed in accordance with law.
As the matter is of the year 2006, the trial Court is directed to complete the proceedings and -6- Crl.A.528/2011 dispose of the case within a period of six months from the date of their appearance.
To avoid the delay, both the parties are directed to appear before the trial Court on 11.3.2013.
Sd/-
JUDGE ap