Karnataka High Court
Smt. M Manjula vs N K Dwarakanath on 22 November, 2023
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NC: 2023:KHC:43253
CRL.A No. 1054 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1054 OF 2012
BETWEEN:
SMT. M. MANJULA,
W/O SRI. B.G. MURLI KRISHNA,
AGE: 29 YEARS,
RESIDING AT NO.79,
JEWELER STREET,
BANGALORE - 560 038,
REPRESENTED BY HER G.P.A. HOLDER,
SHRI. B.G. MURLI KRISHNA,
AGE: 34 YEARS.
...APPELLANT
(BY SRI. A.S. KULKARNI, ADVOCATE)
AND:
Digitally signed
by SANDHYA S N.K. DWARAKANATH,
Location: High PARTNER OF M/S. AMOG MARKETING,
Court of
Karnataka M/S. PAVAN DISTRIBUTORS, AND
M/S. SHREYAS DISTRIBUTORS,
NO.17/1, GUPTHA LAYOUT,
IST CROSS, ULSOOR,
BANGALORE - 560 038.
...RESPONDENT
(BY SRI. P.B. APPIAH, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 23.07.2012
PASSED BY THE XV A.C.M.M., BANGALORE IN
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NC: 2023:KHC:43253
CRL.A No. 1054 of 2012
C.C.NO.4040/2006 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I.ACT; AND ETC.,
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The complainant/appellant has preferred this appeal against the judgment of acquittal passed by the XV Additional ACMM, Mangaluru, in CC.No.4040/2006 dated 23.07.2012.
2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the concerned Court.
3. The brief facts of the complaint is that the complainant is the sleeping partner of M/s. Shreyas Distributors. One Kumar was the active partner of the firm. Mr. Kumar was looking after the management of the partnership firm and was whole and sole person responsible for the firm. M/s. Shreyas Distributors was dealing in home appliances. Further, she contends that -3- NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 without informing her and bringing to her knowledge, the active partner of the firm Mr. Kumar has sold his partnership to the accused. Only after completion of sale of partnership and accused becoming a partner of M/s. Shreyas Distributors, it was informed to the complainant. As the complainant has invested huge money, she kept quite and as accused was the close friend of the husband of the complainant, she accepted the accused as partner of M/s. Shreyas Distributors. At the initial stage, business of the partnership firm was running smoothly. The complainant was sleeping partner of the said firm and accused was the active partner in the partnership firm which came into effect on 01.04.2002. The complainant was having her business of distribution in food products and home appliances. The accused was a partner of many firms like M/s. Amog Marketing, M/s. Pavan Distributors etc. After becoming the partner of M/s. Shreyas Distributors with the complainant, the accused insisted the complainant to invest the amount in the business of the accused in the above said firms of the -4- NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 accused. The accused assured the complainant that after investing, the complainant would get handsome amount of income. The complainant looking into the friendship of the accused with the husband of the complainant and believing the words of accused, has agreed to become partner in the firms of the accused and invested the amount of Rs.40,40,000/- in M/s. Pavan Distributors and M/s. Amog Marketing, by way of 20 cheques of various denominations from 08.06.2002 to 24.12.2003. On 25.07.2005, the accused had issued a cheque for sum of Rs.40,40,000/- to repay the amount invested by the complainant promising that he has sufficient funds in his account and on presentation of the cheque, the cheque will be honoured. The accused further assured the complainant that after honouring the cheque, he will clear the bank dues taken by the accused as a security on the documents of the complainant and her family on SODA account. The accused also assured soon after clearing the dues of M/s. Shreyas Distributors to the other suppliers and companies, the accused will dissolve the partnership -5- NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 of M/s. Shreyas Distributors. The complainant by believing the words of accused, presented the cheque for encashment but the same was dishonoured with an endorsement 'account closed' on 28.07.2005. Hence, the complainant got issued legal notice to the accused. The notice sent under UCP was served on the accused but the notice sent under RPAD was returned with a postal shara 'party refused'. The accused failed to send reply to the said notice. Accordingly, the accused has committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881. (hereinafter referred to as 'N.I.Act' for short). Hence, the complainant has lodged complaint.
4. After taking cognizance of the offence against the accused for the alleged commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the case was registered in C.C.No.4040/2006 and summons were issued to the accused. In response to the summons, the accused -6- NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 appeared before the Court and plea was recorded. The accused pleaded not guilty.
5. To prove the case of the complainant, the complainant herself examined as PW.1 and her husband was examined as PW.2. 23 documents were got marked as Exs.P1 to P23. On closure of complaint's evidence, statement under Section 313 was recorded. The accused has denied the incriminating materials appeared against him and adduced his evidence and his witnesses as DWs.1 to 5. 107 documents were got marked as Exs.D1 to D107. On hearing both sides, the Trial Court has passed the judgment of acquittal. Being aggrieved by this judgment of acquittal, the appellant has preferred this appeal.
6. Learned counsel for the appellant submits that the impugned judgment and order of acquittal is opposed to law, facts and material on record and all probabilities of the case. Learned Magistrate has ignored the provisions -7- NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 of Section 139 of N.I.Act though the complainant has proved the essential ingredients of Section 138 of N.I.Act and acquitted the accused. The Trial Court has committed error in recording the statement of DWs.1 to 5 on the basis of affidavit instead of examination-in-chief, which is not permissible under the provisions of Section 145 of N.I.Act. On all these grounds, he sought to allow the appeal.
7. Learned counsel appearing on behalf of respondent submits that the Trial Court has properly appreciated the evidence on record and there is no ground to interfere with impugned judgment of acquittal. On these grounds, he sought to dismiss the appeal.
8. Having heard the arguments on both sides, the following points would arise for my consideration:
i. Whether the appellant/complainant has made out a ground to remand the matter to the trial Court for fresh disposal in accordance with law?-8-
NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 ii. What order?
9. My finding to the above points are as under:
i. in the affirmative ii. as per final order Regarding point No.1:
10. I have carefully examined the impugned judgment and materials placed before this Court.
11. It is the case of the complainant that the complainant is the sleeping partner of M/s. Shreyas Distributors. One Kumar was the active partner of the firm. Mr. Kumar was looking after the management of the partnership firm and was whole and sole person responsible for the firm. M/s. Shreyas Distributors was dealing in home appliances. Further, she contends that without informing her and bringing to her knowledge, the active partner of the firm Mr. Kumar has sold his partnership to the accused. Only after completion of sale -9- NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 of partnership and accused becoming a partner of M/s. Shreyas Distributors it was informed to the complainant. As the complainant has invested huge money, she kept quite and as accused was the close friend of the husband of the complainant, she accepted the accused as partner of M/s. Shreyas Distributors. At the initial stage, business of the partnership firm was running smoothly. The complainant was sleeping partner of the said firm and accused was the active partner in the partnership firm which, came into effect on 01.04.2002. The complainant was having her business of distribution in food products and home appliances. The accused was a partner of many firms like M/s. Amog Marketing, M/s. Pavan Distributors etc. After becoming the partner of M/s. Shreyas Distributors with the complainant, the accused insisted the complainant to invest the amount in the business of the accused in the above said firms of the accused. The accused assured the complainant that after investing, the complainant would get handsome amount of income. The complainant looking into the friendship of the
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NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 accused with the husband of the complainant and believing the words of accused, has agreed to become partner in the firms of the accused and invested the amount of Rs.40,40,000/- in M/s. Pavan Distributors and M/s. Amog Marketing, by way of 20 cheques of various denominations from 08.06.2002 to 24.12.2003. On 25.07.2005, the accused had issued a cheque for sum of Rs.40,40,000/- to repay the amount invested by the complainant promising that he has sufficient funds in his account and on presentation of the cheque, the cheque will be honoured. The accused further assured the complainant that after honouring the cheque, he will clear the bank dues taken by the accused as a security on the documents of the complainant and her family on SODA account. The accused also assured soon after clearing the dues of M/s. Shreyas Distributors, to the other suppliers and companies, the accused will dissolve the partnership of M/s. Shreyas Distributors. The complainant by believing the words of accused, presented the cheque for encashment but the same was dishonoured with an
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NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 endorsement 'account closed' on 28.07.2005. Hence, the complainant got issued legal notice to the accused. The notice sent under UCP was served on the accused but the notice sent under RPAD was returned with a postal shara 'party refused'. The accused failed to send reply to the said notice. Accordingly, the accused has committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881. (hereinafter referred to as 'N.I.Act' for short). Hence, the complainant has lodged complaint.
12. To substantiate the case of the complainant, the complainant himself got examined as PW.1 and 23 documents were got marked as Exs.P1 to P23. On closure of complainant's evidence, thereafter the accused has adduced his evidence and his witnesses as DWs.1 to 5. 107 documents were got marked as Exs.D1 to D107.
13. The DW.1- N K Dwarakanath has adduced his evidence in examination-in-chief by way of affidavit which is not in consonance with Section 145 of Negotiable
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NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 Instruments Act, 1881. In this regard, I have gone through the judgment of Hon'ble Apex Court in the case of M/S. MANDVI CO-OPERATIVE BANK LIMITED v. NIMESH b., THAKORE reported in AIR 2010 SC 1402 at paragraphs 31 and 32 of the judgment, the Hon'ble Supreme Court has observed as under:
"31. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions.
32. On a bare reading of Section 143 it is clear that the legislature provided for the 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
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NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 reasonable ground to refuse such permission.
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 154(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 a complaint under Section 138 of the 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 let the prosecution stand or fall on its own evidence. In case the 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 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."
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14. On examination of the aforesaid decision along with provisions of Section 145 of N.I.Act, it is clear that the Trial Court has not followed the provisions of Section 145 of the said Act and evidence of DWs.1 to 5 by way of affidavit is not permissible under law. Since the accused/respondent did not adduce his evidence in accordance with law, the evidence of DWs.1 to 5 cannot be looked into by this Court. Hence, it is just and proper to remand the matter to Trial Court with a direction to provide opportunity to accused/respondent to adduce his evidence in accordance with law. Accordingly, complainant has made out a ground to interfere with the impugned judgment of acquittal and also to remand the case to the trial Court. Hence, I answer Point No.1 in the affirmative. Regarding Point No.2:
15. For the aforesaid reasons and discussions, I proceed to pass the following:
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NC: 2023:KHC:43253 CRL.A No. 1054 of 2012 ORDER
1. Appeal allowed;
2. Judgment of acquittal dated 23.07.2012 passed in C.C.No.4040/2006 by the Court of the XV Addl. Chief Metropolitan Magistrate, Bangalore, is set aside and the case is restored to file;
3. Matter is remitted back to the trial Court with a direction to provide opportunity to the accused to adduce his oral evidence in accordance with law and also as per the judgments of Hon'ble Supreme Court as observed by this Court in the body of the judgment;
4. The trial Court is also directed to provide an opportunity to both the parties to adduce their evidence, if any;
5. Both the parties are directed to appear before the trial Court on 13th December, 2023 without seeking any further notice from the trial Court in this regard;
6. The trial Court is directed to dispose of the case within six months from the date of receipt of certified copy of this judgment as the matter is of the year 2006;
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7. Registry to send the copy of this judgment along with the trial Court record to the trial Court without any delay.
Sd/-
JUDGE SSD