Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 433 (KAR)

Ganga Lakshmi v. Rama Venktesh

2022-03-31

K.NATARAJAN

body2022
JUDGMENT K. Natarajan, J. - The Crl.A. No. 229/2018 is filed by the appellant under Section 378 (4) of Cr.P.C. for setting aside the judgment of acquittal passed by the XIX ADDL.C.M.M., Bengaluru in C.C. No. 8606/2016 dated 04.12.2017 for the offences punishable under Section 138 of Negotiable Instruments Act, 1881. 2. The Crl.A. No. 230/2018 is filed by the same appellant-complainant under Section 378(4) of Cr.P.C. for setting aside the judgment of acquittal passed by the XIX ADDL.C.M.M., Bengaluru in C.C. No. 8607/2016 dated 21.12.2017 for the offences punishable under Section 138 of Negotiable Instruments Act, 1881. 3. Heard the arguments of learned counsel for the appellant and learned counsel for the respondent. 4. The rank of the parties before the trial Court retained for the sake of convenience. 5. The case of the appellant in the first case with respect to CC. No. 8606/2016 is that the accused and the complainant are known to each other and the accused borrowed loan of Rs. 2,00,000/- from the appellant in December 2014 with promise to repay the same within a short period and he has issued cheque for Rs. 2,00,000/- vide cheque No. 352289 dated 16.12.2015 when it was presented before the bank and it was dishonoured for "funds insufficient" therefore she approached the accused and requested for payment and at the request of the accused once again re-presented the cheque on 22.01.2016 the same was dishonoured. Hence legal notice on 04.02.2016 issued, intimation was delivered but respondent accused neither replied nor paid the amount. Hence, complaint came to be filed for the offence punishable under Section 200 Cr.P.C. for the offences punishable under Section 138 of Negotiable Instruments Act, 1881. 6. In Crl.A. No. 230/2018 where the accused also borrowed loan of Rs. 3,50,000/- from the complainant in December 2000 and issued a cheque bearing No. 352286 dated 16.12.2015 and the same was dishonoured on 22.01.2016 and therefore at request of accused once again it was presented on 25.01.2016 and again it was dishonoured, legal notice was issued intimation was delivered to respondent, but neither he replied nor repaid the money. Hence complaint came to be filed under Section 200 Cr.P.C. for the offences punishable under Section 138 of NI Act. 7. Hence complaint came to be filed under Section 200 Cr.P.C. for the offences punishable under Section 138 of NI Act. 7. The further case of the complainant is that the respondent-accused paid through the counsel in both the cases and independently contested the matter by denying the charges framed by the Court. The appellant examined herself as PW1 in both cases by filing the affidavit and marked documents. The statement of the accused also recorded, respondent also examined as DW1 also marked six documents and after hearing arguments acquitted the accused mainly on the ground that the complaint was filed for of payment of Rs. 2,00,000/- but the evidence was for Rs. 3,50,000/- in the first case and in the second case the complaint was for Rs. 3,50,000/- but the evidence was given for Rs. 2,00,000./-. 8. After hearing arguments, the trial court acquitted the accused mainly on the ground that the evidence and the complaint differs, which is clear contradiction, hence acquitted. The learned counsel for the contended that there are two cases filed by the complainant in the same court and evidence was recorded by the Magistrate on the same day, where the cheque and the evidence was lead in the first case pertaining to second case whereas the affidavit and evidence lead in the second case which was pertaining to first case. The respondent also not verified the but only denied the same. The trial court also committed error in not properly verifying the documents and accepted the evidence and finally delivered the judgment, which is not correct. Hence prayed for remanding the matter back to the trial court for fresh consideration. 9. Per contra learned counsel for respondent seriously objected and contended that the judgment was delivered not only on the point of evidence but also the complaint has no capacity to pay Rs. 5,50,000/- to the accused and no document was produced, such being the case and she was earning only Rs. 10,000/- per month as salary whereas the respondent-accused was working as accountant in the same work place (Pragathi Corporation). Such being the case no occasion for respondent to borrow huge money and complainant also not having capacity to pay such huge amount to the respondent, therefore prayed for dismissing the appeal. 10. 10,000/- per month as salary whereas the respondent-accused was working as accountant in the same work place (Pragathi Corporation). Such being the case no occasion for respondent to borrow huge money and complainant also not having capacity to pay such huge amount to the respondent, therefore prayed for dismissing the appeal. 10. Having heard the arguments and perusal of records, the point for consideration arises; Whether the judgment of the trial court passing the judgment by considering misplaced evidence in the case calls for interference? 11. On perusal of the records, admittedly the complainant filed two complaints for two different cheques bearing No. 352289 dated 16.01.2015 and 352286 dated 16.12.2015 and both the complaints were taken cognizance by the Magistrate after recording sworn statement and plea also recorded for an amount of Rs. 2,00,000/- in the first case and Rs. 3,50,000/- in the second case. It is pertinent to note while examination of the complaint before the trial court in both the cases, where the complainant has filed affidavit in view of examination chief on 29.07.2017. There were two different affidavits which were filed in lieu of evidence while production of the affidavits the counsel for the accused committed blunder in producing the affidavit in respect of the cheque for Rs. 2,00,000/- in cheque No. 352289 and in the second case in C.C. No. 8607/2016 instead of filing the said affidavit in CC. No. 8606/2016. The cheque for Rs. 2,00,000/- and the legal notice, as well as all marked documents in respect of Rs. 2,00,000/- but the complainant was filed for Rs. 3,50,000/-. Likewise in the second case in CC No. 8607/2016 the affidavit filed by the complainant in respect of cheque for Rs. 2,00,000/- whereas the complaint was filed for Rs. 3,50,000/-. 12. The marking of the document also clearly reveals the cheque was for Rs. 3,50,000/-. The affidavit evidenced for Rs. 3,50,000/- whereas the case filed for Rs. 2,00,000/- and all the examination chief affidavit, cheque, legal notices, were all pertaining to the first case, has been produced and marked in second case and the cheque and documents pertaining to second case marked in first case, there was exchange of the evidence adduced during proceedings due to confusion. 3,50,000/- whereas the case filed for Rs. 2,00,000/- and all the examination chief affidavit, cheque, legal notices, were all pertaining to the first case, has been produced and marked in second case and the cheque and documents pertaining to second case marked in first case, there was exchange of the evidence adduced during proceedings due to confusion. That apart, the trial Court blindly accepted evidence and everything until arguments stage and while passing the judgment, trial court has stated the complaint is for some amount and evidences for different amount, therefore on that ground the accused was mainly acquitted apart from the other grounds. However, the judgment delivered by trial court is not sustainable for the reasons the trial court when two cases were filed in the same court for evidences were made and the documents were wrongly marked by the counsel. The court cannot simply do work as post office without observing and exercising power under Section 165 of the Evidence Act, which reveals from this statement of the accused under the Section 313 of Cr.P.C. recorded by the Magistrate wherein though the evidence was lead by the complainant for different evidence in different cases but the statement recorded under Section 313 of Cr.P.C. by the Magistrate, is not based upon examination chief of the complainant. 13. The question No. 2 was imposed for issuing cheque of Rs. 3,50,000/- which was dishonoured whereas the evidence examination chief was given by the complainant for Rs. 2,00,000/-. Likewise in second case the statement was recorded for Rs. 2,00,000/- whereas evidence was given for Rs. 3,50,000/- which reveals the statement under Section 313 is important stage recorded by the Magistrate and it is not based on the examination chief, which reveals Magistrate also committed error while recording the statement unknowingly that the evidence and the complaint was placed before the court. Therefore on this ground the judgment of the trial court in both the cases is not sustainable under the law. Hon'ble Supreme Court held in various judgment that recording statement under Section 313 of Cr.P.C. is not a formality but it is important stage where the incriminating evidence against accused shall have to be read over and explained to him and thereafter accused has to start his defense. Such being the case the evidence and the statement under Section 313 of Cr.P.C. being contradictory to each other than the complaint. Such being the case the evidence and the statement under Section 313 of Cr.P.C. being contradictory to each other than the complaint. Therefore, there is serious prejudice caused to the complainant case. The learned counsel for the appellant fairly admits, it is the mistake on the part of the advocate while filing the evidence which was exchanged in both cases. 14. Though the learned counsel for respondent objected regarding capacity and other grounds but for the said reasons the same cannot be adjudicated at this stage when the evidence and the documents were wrongly marked by the court in different cases. Therefore, by keep opening all the contentions of the respondent-accused, it is deemed fit and proper to set aside the judgment delivered by the trial Court in both the cases. Accordingly both the appeals are allowed. The judgment of the trial court passed in C.C. No. 8606/2016 dated 04.12.2017 and C.C. No. 8607/2016 dated 21.12.2017 passed by the XIX ADDL.C.M.M., Bengaluru for the offences punishable under Section 138 of Negotiable Instruments Act, 1881, are hereby set aside. The matters are remanded back to the trial court for considering fresh evidence. The matter required for fresh consideration with the direction to check the affidavit evidence in both the cases and by keeping open all the contention and grounds urged by the parties before the court and also permitted to lead any further evidence. Accordingly, these appeals are disposed of with direction to dispose the matter within 6 months from the date of the receipt of the copy of this order.