Karnataka High Court
Sri Mohandas Shetty vs Shafeeq Ahamed on 18 December, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF DECEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL NO.1071/2008 c/w
CRIMINAL APPEAL NO.1072/2008
BETWEEN:
Sri.Mohandas Shetty
S/o late Sri.A.Manjayya Shetty
Aged about 51 years
No.16/A, GEF Block,
Industrial Town,
Bangalore-560 044. ...Appellant
(common)
(By Sri.T.Mohandas Shetty, Adv.)
AND:
Shafeeq Ahamed
s/o late Sri.A.Nawab Jaan,
No.15, 100 ft. main road,
BTM 1st stage, Opp. Water tank,
Bangalore-560 029.
...Respondent
(common)
(By Sri.A.G.Ravikumar, Adv.)
These Criminal Appeals are filed u/S.378(4)
Cr.P.C praying to set aside the order passed by the XIII
Addl.CMM, Bangalore, in C.C.Nos.596/06 &
17522/2004 dated 04.09.2008 vide Annexure-A,
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acquitting the respondent-accused for the offence
p/u/S.138 N.I.Act.
These Criminal Appeals coming on for final
hearing this day, the Court delivered the following:-
JUDGMENT
The appellant had initiated two complaints against the respondent-accused alleging an offence punishable under Section 138 of N.I.Act. The afore-stated complaints were registered in C.C.No.17522/2004 and C.C.No.596/2006.
2. C.C.No.17522/2004 was registered for dishonour of cheque bearing No.186916 dated 27.12.2003 for a sum of Rs.1,75,000/- and C.C.No.596/2006 was registered for dishonour of cheque bearing No.186925 dated 26.04.2005 for a sum of Rs.2,50,000/-. The learned trial Judge on appreciation of evidence, has acquitted the accused and therefore, the complainant has filed these two appeals.
3. I have heard the learned counsel for parties and have gone through the records, which would reveal that -3- accused has filed defence evidence in the form of affidavits which is not permissible under Section 145 of N.I.Act.
4. In a decision reported in (2010) 3 SCC 83 (in the case of Mandi 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", 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 circumstances, the learned trial Judge should not have placed reliance on the affidavits filed in lieu of evidence of DW-1 Shafeeq Ahmed, DW-2 -4- P.Narasimharaju and DW-3 Jahangir Basha. In view of this legal infirmity, the impugned judgments cannot be sustained.
6. In the result, I pass the following:
The appeals are accepted. The impugned judgments are set aside. The matter is remanded to the learned Magistrate for reconsideration from the stage of the defence evidence. The learned Magistrate shall record the evidence of accused in accordance with law.
The complainant is at liberty to adduce rebuttal evidence, if he so desires. The learned Magistrate shall decide the case within a period of three months from the date of receipt of a copy of this order. Office is directed to send back the lower court records along with a copy of this order.
Sd/-
JUDGE Srl.