Karnataka High Court
Mahendra Kumar Singhi S/O Prithviraj ... vs Sri M V Vijayan on 23 November, 2012
1 Crl.A.No.87/2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.87 OF 2009
BETWEEN:
MAHENDRA KUMAR SINGHI
PROPRIETOR
S/O PRITHVIRAJ SINGHI
M/S SINGHI METAL
NO.104, MONEY POINT
K.H.ROAD,
BANGALORE 560 027.
... APPELLANT
(BY SRI: VENKATESH R BHAGAT, ADV)
AND:
SRI M V VIJAYAN
PROPRIETOR,
PRECISION ENGINEERING ENTERPRISES,
NO.4, SOUMYA INDUSTRIAL ESTATE
RAILWAY PARALLEL ROAD
MUTHYALNAGAR GOKULA POST
BANGALORE 560 054.
... RESPONDENT
(BY SRIYUTHS D R RAJESHEKARAPPA &
S S KOTI, ADVS.)
THIS CRL.A. IS FILED UNDER SECTION 378(4) READ
WITH SECTION 482 CR.P.C. PRAYING TO SET ASIDE THE
ORDER DATED 30.12.08 PASSED BY THE XIII ADDL. CHIEF
METRPOLITAN MAGISTRATE, BANGALORE CITY IN
C.C.NO.2719/2004 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT.
2 Crl.A.No.87/2009
THIS CRL.A. COMING ON FOR HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The appellant has challenged the judgment and order of acquittal of respondent for the charge under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the NI Act' for short) on a trial held by Addl. Chief Metropolitan Magistrate, Bangalore City.
2. The facts reveal that the appellant is complainant whereas the respondent is the accused and a complaint came to be filed by the appellant on the ground that towards part payment of dues, the respondent had issued one cheque for a sum of Rs.2,00,000/- and another sum of Rs.1,85,306/- and when the cheque was presented for encashment, it returned with an endorsement as "payment stopped by the drawer". The appellant issued a notice and as the demand was not met, he approached the Trial Court with a complaint under Section 138 of the NI Act.
3 Crl.A.No.87/2009
3. During the course of trial, the appellant was examined as PW1 and the documents Exs.P1 to P39 were marked. Statement of respondent was recorded under Section 313 Cr.P.C. The respondent is examined as DW1 and the documents Exs.D1 to D42 have been marked. The Trial Court after hearing the counsel for parties and on appreciation of the material placed on record, has acquitted the respondent for the said charge. Aggrieved by the acquittal, the present appeal has been filed.
4. I have heard learned Counsel for both the parties.
5. It is the submission of learned Counsel for the appellant that after recording the statement of respondent under Section 313 Cr.P.C., as the respondent filed an affidavit in lieu of his chief examination and after he was cross examined, the Trial Court has relied upon the evidence of respondent and granted an order of acquittal. He further contends that the order of Trial Court is contrary to Section 145 of the NI Act. 4 Crl.A.No.87/2009
6. On the other hand, learned Counsel for the respondent supported the judgment and order of Trial Court.
7. It is not in dispute that after recording the statement of respondent under Section 313 Cr.P.C., the respondent filed an affidavit by way of examination-in-chief on 12.08.2008. After the affidavit was filed, he was cross examined. Now as could be seen from the provisions of Section 145(1) of the NI Act, the same is extracted hereunder for the sake of convenience:
"145(1). Evidence on affidavit:-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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, trial or other proceeding under the said Code."
8. As could be seen from the aforesaid provisions, it was added by Amendment Act 55 of 2002 with effect from 06.02.2003. So, in case, if the 5 Crl.A.No.87/2009 evidence of complainant is to be recorded, the Courts have been given discretion to entertain an affidavit in lieu of examination-in-chief, but the said provision is not applicable to the accused. On this aspect of the matter, learned Counsel for the appellant has placed reliance on the decision of Apex Court reported in AIR 2010 SC 1402 (M/s Mandvi Co-op Bank Ltd., Vs Nimesh B Thakore), the relevant portion of the decision is extracted herein for the sake of convenience:
"Interpretation of Statutes -
Incorporating words by Court.
If the legislature in their wisdom did not think 'it proper to incorporate a work' accused' with the word 'complainant' in S.145(1)....", it was not open to the High Court to fill up the self-perceived blank. Secondly, the drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque was not proper. 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 6 Crl.A.No.87/2009 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 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. (Paras 31, 32) Therefore, it cannot be said that on a request made by the accused the Magistrate may allow him to tender his evidence on affidavit. (Para 36)
9. So, in view of the provisions of Section 145(1) of NI Act and the decision of Apex Court referred to supra, I am of the opinion that the 7 Crl.A.No.87/2009 Trial Court has committed an error in accepting the affidavit of respondent in lieu of examination-in- chief. Therefore, the judgment and order passed on the basis of such evidence is erroneous, illegal and has to be set aside.
10. In the result, the appeal is allowed. The judgment and order dated 30.12.2008 is set aside. The matter is remitted back to the Trial Court to proceed on with the case from the stage of commencement of evidence of the accused. The Trial Court after recording the evidence of respondent is directed to dispose of the case in accordance with law.
Parties shall not wait for summons of the Court and are directed to appear before the Trial Court on 05.01.2013.
Sd/-
JUDGE *bgn/-