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2013 DIGILAW 99 (KAR)

Anand Kumar Bhandari v. N. Narasimha Murthy

2013-01-23

A.S.PACHHAPURE

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Judgment A.S. Pachhapure, J. 1. These appeals arise out of the judgment and order acquitting the respondent for the charge under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'NI Act' for short) on a trial held by Addl. CMM, Bangalore City. The appellant is complainant in both the cases whereas the respondent is accused. The appellant is said to have advanced a sum of Rs. 1,00,000/- and the respondent is said to have issued cheque dated 22.08.2005 whereas in another transaction, appellant is said to have advanced a sum of Rs. 2,00,000/- and towards repayment, cheque dated 02.12.2005 is said to have been issued by the respondent. The cheques were presented in the bank for encashment, they returned dishonored with the endorsements of stop payment and insufficient funds respectively. The appellant issued notices and as the demand was not met by the accused, a complaint came to be filed to initiate action for the offence under Section 138 of NI Act. 2. Both the cases were clubbed and the appellant examined as PW1 and Ex. P1 to P33 were marked. After recording the statement of respondent under Section 313, Cr.P.C. accused examined himself as DW1 and a witness DW2 and got marked documents Exs. D1 to D50. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, acquitted the respondent for the charge under Section 138 of NI Act. Aggrieved by the acquittal, the present appeals have been filed. 3. Learned counsel for the appellant would contend that the signature on the cheques have been admitted by the respondent and presumption arise under Section 139 of NI Act relating to the existence of debt or liability and also the issuance of cheques towards repayment of dues. He also contends that the procedure adopted by the Trial Court in recording the evidence is erroneous. Hence, he submits that in the absence of any material to rebut the presumption, the Court below has erroneously acquitted the respondent. 4. On the other hand, learned counsel for the respondent would contend that the material placed on record is sufficient to rebut the presumption. He prays to dismiss the appeal. 5. The scrutiny of material placed on record would reveal that the Trial Court has accepted the affidavit of accused in lieu of chief examination. 4. On the other hand, learned counsel for the respondent would contend that the material placed on record is sufficient to rebut the presumption. He prays to dismiss the appeal. 5. The scrutiny of material placed on record would reveal that the Trial Court has accepted the affidavit of accused in lieu of chief examination. On this aspect of the matter, the provisions of Section 145 of the Act provide that it is the complainant and the witnesses who could file an affidavit in lieu of chief examination and not the accused. In law, the accused is not allowed to file an affidavit in lieu of chief examination and it is necessary for him to enter the witness box even for chief examination. When the law does not provide authority to the Court to entertain an affidavit in lieu of chief examination, it is only the provisions of Evidence Act which will have to be followed in recording the evidence of accused. On this aspect of the matter, the Apex Court in a decision reported in AIR 2010 SC 1402 (M/s. Mandvi Co-op. Bank Ltd. v. Nimesh B Thakore) has held that permitting the accused to file an affidavit in lieu of chief examination is illegal. Hence, the order of Trial Court permitting the accused to file an affidavit, entertaining the same and relying on such evidence is improper. 6. Learned counsel for the respondent submits that the accused has the evidence to lead and therefore, it is necessary that the matter has to be remitted back to the Trial Court to record the evidence of DW1 and then dispose of the case in accordance with law. In the result, the appeals are allowed. The judgment and orders of the Trial Court are set aside. The matters are remitted back to the Trial Court to record the evidence of DW1 and dispose of the case in accordance with law. Both the parties shall appear before the Trial Court on 15.02.2013 without waiting for the notice and the Trial Court after recording the evidence of DW1, shall dispose of the cases in accordance with law within 3 months from the date of communication of this order. Appeal allowed.