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2023 DIGILAW 1341 (KAR)

R. Venaktesh v. Chandrakala

2023-11-24

G.BASAVARAJA

body2023
JUDGMENT : (G. Basavaraja, J.) The complainant/appellant has preferred this appeal against the judgment of acquittal passed by the Additional ACMM and XX ASCJ, Bangalore City in CC.No.9811/2006 dated 03.07.2012. 2. The rank of the parties in this appeal are referred in the same rank as referred by the Trial Court. 3. The brief facts of the complaint is that, the complainant and accused have been acquainted each other since from several years. Accused approached the complainant for financial assistance of Rs.50,000/- as hand loan. He has paid the hand loan of Rs.50,000/- by way of cash on 01.03.2005. Accused agreed to pay interest at the rate of 2% p.m., and also agreed to repay the loan amount within six months. Despite of expiry of six months, accused has not cleared the debt. On continuous follow ups, accused has issued a cheque in question in his favour for Rs.50,000/- and he has presented the same with his bank and the same was returned with an endorsement 'Account Closed/Transferred'. He has issued legal notice by UCP and RPAD and same was duly served on the accused. Despite of service of notice, accused has not cleared the debt. Thus the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act, 1881. 4. In pursuance of service of summons, accused appeared and admitted to bail. Plea was recorded. Accused has pleaded not guilty. To prove the guilt of the accused, complainant got examined himself as PW1 and got marked the documents Ex.P1 to Ex.P8. On closure of complaint side evidence statement under Section 313 of Cr.P.C was recorded. Accused has totally denied the evidence of PW1 and he has adduced her evidence as DW1 by way of affidavit and one document was marked as Ex.D1. 5. On hearing the arguments on both sides, trial Court has passed this judgment of acquittal. Being aggrieved by this impugned judgment of acquittal appellant has preferred this appeal. 6. Appellant counsel remained absent. 7. Respondent counsel present. 8. Learned counsel for the respondent has submitted his arguments that the trial Court has properly appreciated the evidence on record in accordance with law and facts that there are no grounds to interfere with the impugned judgment of acquittal and sought for dismissal of the appeal. 9. 6. Appellant counsel remained absent. 7. Respondent counsel present. 8. Learned counsel for the respondent has submitted his arguments that the trial Court has properly appreciated the evidence on record in accordance with law and facts that there are no grounds to interfere with the impugned judgment of acquittal and sought for dismissal of the appeal. 9. On examination of the materials placed before this Court, the evidence of DW1 reveals that she has filed affidavit instead of her examination-in-chief which is not permissible under law. 10. In this regard this Court relied on the decision of the Hon'ble Apex Court in the case of Mandavi Cooperative Bank Limited v. Nimesh B.Thakore reported in 2010 (3) SCC 83 in para Nos.31 and 32, Hon'ble Apex Court has observed as under: "31. Mr Ranjit Kumar referred to Section 137 of the Evidence Act, that defines "examination-in-chief", "cross-examination" and "re-examination" and on that basis sought to argue that the word "examine" occurring in Section 145(2) must be construed to mean all the three kinds of examination of a witness. This, according to him, coupled with the use of the word "shall" with reference to the application made by the accused made it quite clear that a person giving his evidence on affidavit, on being summoned under Section 145(2) at the instance of the accused must begin his deposition with examination-in-chief, before he may be cross-examined by the accused. In this regard he submitted that Section 145 did not override the Evidence Act or the Negotiable Instruments Act or any other law except the Code of Criminal Procedure. He further submitted that the plain language of Section 145(2) was clear and unambiguous and was capable of only one meaning and, therefore, the provision must be understood in its literal sense and the High Court was in error in resorting to purposive interpretation of the provision. In support of the submission he relied upon the decisions of this Court in Dental Council of India v. Hari Prakash [ (2001) 8 SCC 61 ] and Nathi Devi v. Radha Devi Gupta. 32. Mr Siddharth Bhatnagar, learned counsel for the appellant in the appeal arising from SLP (Crl.) No. 1106 of 2007 also joined Mr Ranjit Kumar in the submission based on literal interpretation. 32. Mr Siddharth Bhatnagar, learned counsel for the appellant in the appeal arising from SLP (Crl.) No. 1106 of 2007 also joined Mr Ranjit Kumar in the submission based on literal interpretation. He also submitted that ordinarily the rule of literal construction should not be departed from, particularly when the words of the statute are clear and unambiguous. He relied upon Raghunath Rai Bareja v. Punjab National Bank ." 11. In the case on hand, the trial Court in page No.22, the trial Court has observed as under: "In that view of the matter and in view of the above discussions, it has become clear that the defence taken up by the accused that, she used to purchase dress materials on credit basis from the Textile shop of the complainant and she has issued Ex.P1 cheque in question for security purpose appears to be probable and plausible." 12. On examination of the aforesaid decision along with the provision of section 145 of the Negotiable Instruments Act, 1881, it is clear that the trial Court has not followed the provisions of section 145 of the Negotiable Instruments Act, 1881, and the evidence of accused by way of affidavit is not permissible in law. Relying on the evidence of accused given along with the material contradictions the trial Court has acquitted the accused. Since the accused had not adduced her evidence in accordance with law, the same cannot be looked into this Court. Hence, it is just and proper to remit the matter to the trial Court with a direction to provide an opportunity to the accused, to adduce her evidence in accordance with law, accordingly complainant has made out a grounds to interfere with the impugned judgment of acquittal. Hence, I proceed to pass the following: ORDER 1. The appeal is allowed. 2. The judgment of acquittal passed by XVIII Additional ACMM and XX ASCJ, Bangalore City in CC.No.9811/2006 dated 03.07.2012 is set-aside. 3. The matter is remitted back to the trial Court with a direction to provide an opportunity to the accused to adduce her oral evidence in accordance with law and also as per the judgment of the Hon'ble Apex Court as observed by this Court in the body of the judgment. 4. Trial Court is directed to provide an opportunity to both parties to adduce their evidence, if any. 5. 4. Trial Court is directed to provide an opportunity to both parties to adduce their evidence, if any. 5. Both parties are directed to appear before the trial Court on 14.12.2023, without seeking any further notice from the trial Court in this regard. 6. The trial Court is directed to dispose off the case within six months from the date of receipt of certified copy of the judgment and also appearance of both parties, as the matter is of the year 2006. 7. Registry is directed to send a copy of this judgment along with the trial court records to the concerned trial Court without causing any delay.