Karnataka High Court
Rameshappa vs H T Palakshayya on 16 December, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1084 OF 2011
BETWEEN:
RAMESHAPPA
S/O.GANESHAPPA S
AGED ABOUT 44 YEARS
OCC: TEACHER, R/O SRI LAXMI NILAYA
SHIRALAKOPPA - HIREKERUR ROAD,
SHIRALAKOPPA TOWN
SHIKARIPURA - TQ
SHIMOGA - DT
...COMPLAINANT / APPELLANT
(BY SRI. DAYANAND S PATIL, ADVOCATE)
AND:
H.T.PALAKSHAYYA
S/O.TIPPAYYA
MAYASHETTY KOPPA (MUGALIKOPPA)
TALAGUND HOBLI,
BALLIGAVI POST,
SHIKARIPURA - TQ
SHIMOGA - DT
....ACCUSED / RESPONDENT
(BY SRI. G.M.ANANDA - AMICUS CURIAE)
THIS APPEAL IS FILED UNDER SECTION 378 (4) OF THE
CODE OF CRIMINAL PROCEDURE PRAYING TO A) ALLOW THE
TOP NOTED APPEAL BY SETTING ASIDE THE JUDGMENT AND
ORDER DATED 10.08.2011 IN C.C.NO.78/2010 PASSED BY
THE SENIOR CIVIL JUDGE AND J.M.F.C., SORAB, IN RESPECT
OF OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT,
IN THE INTEREST OF JUSTICE.
2
CRL.A 1084/2011
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 16.11.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This is complainant's appeal under Section 378 (4) of Cr.P.C. challenging the judgment and order dated 10.08.2011 in C.C.No.78/2010 dismissing the complaint filed by him under Section 200 Cr.P.C. for the offence punishable under Section 138 of N.I.Act.
2. For the sake of convenience the parties are referred to by their rank before the trial Court.
3. It is the case of the complainant that he is a teacher and also distributor of submersible pump sets, whereas accused is a driver and also doing agriculture. They came to know each other in connection with the sale of submersible pump sets and became close. Accused has borrowed a total sum of Rs.2,73,000/- consisting of cash in a sum of Rs.1,18,775/- and remaining amount in cheques as detailed in the complaint. When insisted upon repaying 3 CRL.A 1084/2011 the same, accused issued a cheque dated 12.04.2007 for a sum of Rs.2,73,000/-.
3.1. However, when it was presented for encashment, the same is returned dishonored on the ground of insufficiency of funds. The legal notice dated 08.05.2007 sent to the accused is unserved and returned with an endorsement 'accused is not residing in Mayashettykoppa'. Therefore, he issued one more notice dated 02.06.2007 and it is returned with endorsement 'door locked after waiting for 7 days'. Intentionally accused has evaded the service of notice, forcing the complainant to approach the trial Court.
4. After recording the sworn statement of the complainant, the trial Court took cognizance.
5. In response to the service of notice, accused appeared and contested the matter.
6. He pleaded not guilty to the charge framed and claimed trial.
4CRL.A 1084/2011
7. In support of his case, complainant got himself examined as PW-1 and one witness as PW-2. He got marked Ex.P1 to 16.
8. Accused also examined himself in chief by way of Affidavit. He got marked Ex.D1 to 6 and subjected himself for cross-examination.
9. Vide impugned judgment and order, the trial Court dismissed the complaint.
10. Aggrieved by the same, appellant is before this Court contending that the trial Court has erred in not considering the case of the complainant. It misunderstood and got confused with the facts of the case. It has not given any proper and cogent reasons for its findings. The approach of the trial Court is one sided.
11. On the other hand, the learned Amicus Curaie representing the respondent/accused supported the impugned judgment and order and prays to dismiss the appeal.
5CRL.A 1084/2011
12. Heard arguments of both sides and perused the record.
13. Though during the course of the appeal, complainant has urged several grounds, during the course of arguments, the learned counsel for complainant restricted his submissions to the ground that the accused has led evidence by way of Affidavit and in view of specific provisions contained under Section 145 of N.I.Act, he is require to give oral evidence and as such his affidavit evidence cannot be taken into consideration and prays to remand the case for the limited purpose of enabling accused to give oral evidence and thereafter, to decide the matter on merit. In support of his contention, the learned counsel for complainant has relied upon the decision of the Hon'ble Supreme Court in Mandvi Co-operative Bank Limited Vs. Nimesh B.Thakore1 (Mandvi Co-operative Bank's case) and also the order in Malenadu Areca Traders Company Pvt. Ltd., Vs. Naveen Traders, Sagar2 (Malenadu Areca Traders' case), passed by Co- ordinate Bench of this Court.
1 (2010) 3 SCC 83 2 Crl.A.No.496/2009 dated 05.12.2012 6 CRL.A 1084/2011
14. Elaborating his arguments, learned counsel for complainant submitted that in similar case the Co-ordinate Bench of this Court in Malenadu Areca Traders' case referred to supra has set aside the judgment and order of the trial Court solely on the ground that accused did not lead oral evidence, but on the other hand, filed affidavit evidence. He submits that this matter also requires to be remanded to the trial Court.
15. Section 145 of N.I.Act which provides that evidence to be led on affidavit reads as follows:
"145. Cross-examination as to previous statements in writing: A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
16. The plain reading of this provision makes it evident that the complainant and his witnesses may be permitted to lead evidence on affidavit. Sub-section (2) requires that if an application is filed by the accused to recall the complainant or his witnesses, it is mandatory to recall such witnesses to enable him to cross-examine and 7 CRL.A 1084/2011 similarly, in case the complainant makes an application to recall such witnesses, the Court may allow such application.
17. Considering the scope and ambit of Section 145 of N.I.Act, in Mandvi Co-operative Bank's case referred to supra, the Hon'ble Supreme Court held that while Section 145 of N.I.Act enables the complainant and his witnesses to give evidence on affidavit, no such provision is made for the accused to lead evidence on affidavit. In other words, accused is required to give his evidence orally.
18. Elaborating the same, the Hon'ble Supreme Court held that "the High Court was in error in drawing an analogy between the evidence of complainant and the accused in a case of dishonored cheque. The case of the complainant in a complaint under Section 138 of the N.I. Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and led the prosecution stand or fall on its own evidence. In case, defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the 8 CRL.A 1084/2011 presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well. Therefore, the High Court was in error in taking the view, that on a request made by the accused the Magistrate may allow him to tender his evidence on affidavit".
19. Thus, the Hon'ble Supreme Court held that in case of complainant, which is largely based on documentary evidence, the complainant and his witnesses may be able to lead evidence by way of affidavit. However, it may not be the case with accused. Having regard to the different facts and circumstances, the defence of accused need not be based on any documentary evidence; in all likelihood the defence would lead other kind of evidence to rebut the presumption that the issuance of cheque was not in the discharge of any debt or liability. This being the basic difference between the nature of complainant's evidence 9 CRL.A 1084/2011 and the evidence of the accused in case of the dishonored cheque, in its wisdom, the legislature has not permitted the accused to lead evidence by way of affidavit.
20. Relying upon the decision in Mandvi Co- operative Bank's case referred to supra, the Co-ordinate Bench of this Court, in Malenadu Areca Traders' case referred to supra, set aside the judgment and order of the trial Court mainly on the ground that it erred in permitting accused to lead defence evidence by way of affidavit and remanded the case for fresh disposal, to enable the accused to lead oral evidence, if he so desires.
21. In the present case also, accused has led evidence by filing affidavit. In the light of the ratio in Mandvi Co-operative Bank's case, if the affidavit of the accused is rejected, practically there is no evidence on record led by the accused. Therefore, the matter requires to be remanded to the trial Court, to enable the accused to lead oral evidence, if he so wishes and thereafter to decide the matter afresh. In the result, appeal deserves to be allowed and accordingly, I proceed to pass the following: 10 CRL.A 1084/2011
ORDER
(i) Appeal filed by complainant is allowed.
(ii) The impugned judgment and order dated 10.08.2011 is set aside.
(iii) The matter is remanded to the trial Court, with a direction to permit accused to lead oral evidence and the oral evidence of his witnesses (if any), and to proceed in accordance with law.
(iv) Complainant is directed to appear before the trial Court on 16.01.2023 without waiting notice from the said Court.
(v) It is brought to the notice of this Court that
respondent is in Jail undergoing
imprisonment in C.C.No.398/2007 at
District Prison, Shivamogga under CTP
No.729. The Trial Court is directed to
secure his presence and proceed with the matter, if necessary, by providing him legal service.
11CRL.A 1084/2011
(vi) Since the transaction is of the year 2007, the trial Court is directed to dispose of the matter at the earliest, preferably, within a period of four months from 16.01.2023.
Appreciation is placed on record for the valuable assistance rendered by the learned Amicus Curiae representing the respondents/accused. The fees of learned Amicus Curiae is fixed at Rs.5,000/-. The High Court Legal Services Committee is directed to pay the same.
Sd/-
JUDGE RR