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2016 Supreme(Kar) 214
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H. Billappa, J.
N. Dinesh - Appellants
Vs.
Rakesh Ramakanth - Respondent
Criminal Appeal No. 354 of 2012
Decided On : 15-03-2016
For the Appellant :B.S. Jeevan Kumar, Advocate
For the Respondent:R. Nataraj, Advocate
The accused cannot give evidence on affidavit in a case of dishonoured cheque under Section 138 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Cheque bounce - The accused cannot give evidence on affidavit as per the decision of the Hon'ble Supreme Court and the subsequent decision of the Court. The impugned judgment and order was set aside, and the matter was remitted to the Trial Court for reconsideration.
Fact of the Case:
The appellants filed a complaint for the offence of cheque bounce under Section 138 of the Negotiable Instruments Act. The respondent had issued a cheque which was returned with an endorsement 'Payment stopped by the Drawer'. The appellants filed a complaint after issuing a legal notice.
Finding of the Court:
The Trial Court acquitted the respondent-accused, accepting the affidavit evidence of the respondent. The appellants appealed against this decision.
Issues: The main issue was the acceptance of the affidavit evidence of the respondent-accused and its legality under the Negotiable Instruments Act.
Ratio Decidendi: The Hon'ble Supreme Court held that the accused cannot give evidence on affidavit in a case of dishonoured cheque under Section 138 of the Act. The subsequent decision of the Court followed this principle and set aside the impugned judgment and order.
Final Decision: The criminal appeal was allowed, and the impugned judgment and order were set aside. The matter was remitted to the Trial Court for reconsideration, with a direction to allow the respondent-accused to lead his evidence in accordance with the legal principles established by the Hon'ble Supreme Court.
H. Billappa, J.
1. This appeal by the appellants-complainants is directed against the judgment and order dated 21st February, 2012 passed by the Civil Judge and Judicial Magistrate First Class at Holenarasipura in C.C. No. 956 of 2007. By the impugned judgment and order, the Trial Court acquitted the respondent-accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
2. Aggrieved by that, the appellants-complainants have filed this appeal.
3. Briefly stated the facts are:
"The appellants filed a private complaint in C.C. No. 956 of 2007 for the offence punishable under Section 138 of Negotiable Instruments Act. The case of the appellants was that the respondent had issued a cheque bearing No. 149283, dated 2-11-2006 for a sum of Rs. 4,50,000/-. The cheque was presented for encashment on 23-4-2007. It was returned with an endorsement "Payment stopped by the Drawer". Thereafter, legal notice dated 25-5-2007 was issued. Subsequently, complaint was filed for the offence punishable under Section 138 of N.I. Act."
4. The parties have led their evidence. The Trial Court considering the material on record has acquitted the respondent-accused.
5. Aggrieved by that, the appellants have filed this appeal.
6. The appeal can be disposed of on a short ground. Therefore, the other grounds urged are not considered.
7. The learned Counsel for the appellants placing reliance on the decision of the Hon'ble Supreme Court in the case of Mandvi Co-operative Bank Limited v. Nimesh B. Thakore AIR 2010 SC 1402 : (2010) 2 SCC (Cri.) 1: (2010) 3 SCC 83 : 2010 AIR SCW 581 and the decision of this Court in Cri. A. No. 843 of 2008 disposed on 7th December, 2012 in the case of Smt. S.R. Uma v. C. Nagarajaiah and Another submitted that the Trial Court has erred in accepting the affidavit evidence of the respondent-accused and therefore, the impugned judgment and order cannot be sustainable in law.
8. As against this, the learned Counsel for the respondent-accused submitted that the parties have gone into trial knowing each others case and the appellants have cross-examined the respondent and therefore, the impugned judgment and order does not call for interference.
9. I have carefully considered the submissions made by the learned Counsel for the parties and perused the records.
10. It is relevant to note, the accused has given his evidence by way of affidavit. The Hon'ble Supreme Court in the case of Mandvi Co-operative Bank Limited has held as follows at paras 46 and 47:
"46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking over the legislative functions. On a bare reading of Section 143 (sic Section 145) 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 reasonable ground to refuse such permission.
47. 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 145(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 compliant under Section 138 of the Act would be based largely on documentary evidence."
11. The judgment of t
