Karnataka High Court
Sri N Dinesh , S/O Nanje Gowda Since Dead ... vs Sri Rakesh Ramakanth on 15 March, 2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2016
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
CRIMINAL APPEAL No.357/2012
BETWEEN:
1. SRI.N.DINESH,
S/o.NANJE GOWDA.
SINCE DEAD BY HIS LR's
1(a) SMT.REKHA,
W/o.DINESH,
AGED ABOUT 35 YEARS.
1(b) CHI.DHANUSH,
AGED ABOUT 10 YEARS.
1(c). KUM.AISHWARYA @ CHINMAY,
AGED ABOUT 6 YEARS.
1(b) AND 1(c) BEING A MINORS,
REP BY THEIR MOTHER AND
NATURAL GUARDIAN 1(a) SMT.REKHA.
ALL ARE R/AT MATTANVILE POST,
NUGGEHALLI HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT. ...APPELLANTS
(BY SRI.B.S.JEEVAN KUMAR, ADVOCATE)
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AND:
SRI.RAKESH RAMAKANTH,
MANAGING DIRECTOR,
GIGA NETWORKS PVT LTD.,
No.20, 3RD MAIN ROAD, SRIPURA,
SHESHADRIPURAM, BENGALURU. ...RESPONDENT
(BY SRI.R.NATARAJ, ADVOCATE)
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THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT PASSED IN
C.C.No.960/2007 DATED 21/2/2012 BY THE CIVIL JUDGE
& JMFC., HOLENARASIPURA, HASSAN DISTRICT -
ACQUITTING THE RESPONDENT/ ACCUSED OF THE
OFFENCES P/U/S.138 N.I. ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellants/complainants is directed against the judgment and order dated 21st February 2012 passed by the Civil Judge and JMFC at Holenarasipura in C.C.No.960/2007.
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2. By the impugned judgment and order, the trial Court acquitted the respondent/accused for the offence punishable under Section 138 of Negotiable Instrument Act.
3. Aggrieved by that, the appellants/complainants have filed this appeal.
4. Briefly stated the facts are;
The appellants filed a private complaint in C.C.No.960/2007 for the offence punishable under Section 138 of Negotiable Instrument Act. The case of the appellants was that the respondent had issued a cheque bearing No.149281 dated 12.1.2007 for a sum of `.2,00,000/-. The cheque was presented for encashment on 23.4.2007. It was returned with an endorsement "Payment stopped by the Drawer". Thereafter, legal notice dated 25.5.2007 was issued. Subsequently, complaint was filed for the offence punishable under Section 138 of N.I. Act.
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5. The parties have led their evidence. The trial Court considering the material on record has acquitted the respondent-accused.
6. Aggrieved by that, the appellants have filed this appeal.
7. The appeal can be disposed of on a short ground. Therefore, the other grounds urged are not considered.
8. The learned counsel for the appellants placing reliance on the decision of the Hon'ble Supreme Court reported in (2010)3 SCC 83 in the case of Mandvi Cooperative Bank Limited Vs. Nimesh.B.Thakore and the decision of this Court in Crl.A.No.843/2008 disposed on 7th December 2012 in the case of Smt.S.R.Uma Vs. Sri.C.Nagarajaiah and Another submitted that the trial Court has erred in accepting the affidavit evidence of the respondent-accused and therefore, the impugned judgment and order cannot be sustainable in law. 5
9. As against this, the learned counsel for the respondent-accused submitted that the parties have gone into trial knowing each others case and the appellants have cross-examined the respondent and therefore, the impugned judgment and order does not call for interference.
10. I have carefully considered the submissions made by the learned counsel for the parties and perused the records.
11. It is relevant to note, the accused has given his evidence by way of affidavit. The Hon'ble Supreme Court in the case of Mandvi Cooperative Bank Limited V/s Nimesh.B.Thakore reported in (2010) 3 SCC 83 has held as follows at paras 46 and 47;
"46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking over the legislative functions. On a bare reading of Section 143 (sic Section 145) it is clear that the legislature provided for the 6 complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of Section 145 was merely an omission by the legislature that it could fill up without difficulty.
Even though the legislature in their wisdom did not deem it proper to incorporate the word "accused" with the word "complainant" in Section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permissions.
47. There are two errors apparent in the reasoning of the High Court. First, 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. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in 7 a compliant under Section 138 of the ACT would be based largely on documentary evidence."
12. The judgment of the Hon'ble Supreme Court has been followed by this Court in Crl.A.No.843/2008 and the matter has been remitted with a direction to record the evidence of the respondent.
13. It is clear from the decision of the Hon'ble Supreme Court that it is not permissible for the accused to give his evidence on affidavit. Therefore, the impugned judgment and order cannot be sustainable in law.
Accordingly, the Criminal appeal is allowed. The impugned judgment and order dated 21st February 2012 passed in C.C.No.960/2007 by the Civil Judge and JMFC at Holenarasipura is hereby set aside. The matter is remitted to Civil Judge and JMFC at Holenarasipura for reconsideration by giving opportunity to the respondent/accused to lead his evidence in the light of the judgments referred to above. 8 However, this will not come in the way of the appellants/complainants leading their evidence, if required.
The parties shall appear before the Trial Court i.e., Civil Judge and JMFC at Holenarasipura on 11th April 2016 without further notice from the Trial Court.
Sd/-
JUDGE