IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 11TH DAY OF MARCH 2014

BEFORE

THE HON'BLE MR.JUSTICE H.S. KEMPANNA

CRIMINAL REVISION PETITION NO.494/2011

BETWEEN

SMT. JAYAMMA W/O. GANGAVENKATAIAH NOW AGED ABOUT 56 YEARS RESIDING AT NO.484 1ST MAIN ROAD, 6TH STAGE SHIVANAGARA WEST OF CHORD ROAD BANGALORE.

… PETITIONER

(BY SRI. N.SRINIVAS, ADV.,)

AND:

M/S. SRI. GOWRI GANESH CHITS PVT. LTD., NO.307, 1ST FLOOR 2ND MAIN, 7TH CROSS DOMLUR LAYOUT BANGALORE – 560 071.

... RESPONDENT

(BY SRI. K.P.THRIMURTHY, ADV.,)

THIS CRL.RP IS FILED U/S. 397 R/W. 401 OF CR.P..C PRAYING TO SET ASIDE THE ORDER DT.23.2.11 PASSED BY THE ADDL.S.J., AND P.O., FTC-III, MAYO HALL UNIT, BANGALORE, IN CRL.A.NO.25100/10 AND CONFIRMING THE ORDER DT.26.08.10 PASSED BY THE XIV ACMM, BANGALORE, IN C.C.NO.37554/08.

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

This revision petition is directed against the concurrent findings of the Courts below convicting the petitioner for the offence under Section 138 of the N.I. Act and sentencing him to pay a fine of `1,32,500/-, in default to undergo S.I. for one years.

2. The parties in this revision petition would be referred to by their rankings as they are arrayed before the trial Court.

3. It is the case of the complainant that it is the company conducting of chits. The accused issued a cheque bearing No.967761 dated 27.3.2008 for a sum of `82,500/- drawn on Syndicate Bank, Rajajinagar Branch, Bangalore, in favour of the complainant towards the payment of arrears of subscription due by her in respect of Ticket No.37 in chit Group No.G1-02. When the complainant presented the said cheque through their bankers, it was returned with an endorsement stating 'insufficient funds'. Thereafter, the complainant requested the accused to make the amount covered under the cheque, but it was not exceeded to. Thereafter, he got issued a legal notice dated 24.4.2008 through R.P.A.D. and also under certificate of Posting. Notice sent through R.P.A.D. was returned 'unserved' for the reason 'absent information delivered'. But the notice sent through certificate of Posting was not returned and that was taken as due service of notice on the accused. Despite service of notice, the accused did not take steps to send any reply nor paid the amount covered under the cheque. Therefore, the complainant after following the due procedure contemplated under the N.I.Act, filed the complaint before the learned trial Magistrate alleging that the accused has committed the offence under Section 138 of N.I.Act.

4. At the trial, complainant got herself examined as PW.1 and got marked 10 documents as Exs.P.1 to P.10.

5. The accused denied all the incriminating circumstances that were put to her in her 313 statement. Thereafter, she was called upon to enter on her defence and to lead any defence evidence that she may have in support thereof. In response to the same, the accused got herself examined as DW.1 and closed her side.

6. The learned trial Judge on considering the oral and documentary evidence placed on record came to the conclusion that the complainant has established the case against the accused and accordingly, by his judgment dated 26.08.2010 convicted the accused for the offence under Section 138 of the N.I. Act and sentenced him to pay a fine of `1,32,000/-, in default to undergo S.I. for one years.

7. The accused being aggrieved of the said judgment and order of conviction and sentence preferred Criminal Appeal No.25100/2010 on the file of the Additional Sessions Judge, P.O., FTC-III, Mayo Hall Unit, Bangalore City.

8. The learned Sessions Judge on hearing the learned counsel for the respective parties and on going through the records called for in the case dismissed the said appeal preferred by the accused confirming the judgment and order of conviction and sentence passed by the trial Court.

9. The petitioner/accused being aggrieved by the said concurrent findings of the Courts below convicting and sentencing her as aforesaid is in this revision before this Court.

10. Learned counsel appearing for the petitioner at the out set contended, the judgment and order of conviction and sentence of the Courts below cannot be sustained on the ground that they have acted on the affidavit evidence of the accused in lieu of his oral evidence. In support of his submission he relied upon the judgment of the Apex Court in the case of Mandvi Cooperative Bank Limited Vs. Nimesh B.Thakore reported in (2010) 5 SCC 83 and submitted the Courts below having acted upon the affidavit evidence of the accused in lieu of his oral evidence, the entire proceedings namely, the conviction and sentence are vitiated and therefore, it be set aside.

11. Per contra, learned counsel for the respondent/complainant contended, the Apex Court in the decision relied upon by the learned counsel for the petitioner has not considered Sub-Section (2) of Section 145 of the N.I.Act. Drawing the contention of the Court to Sub-Section 2 of Section 145 of the N.I. Act, he submitted that the said provision provides for the accused to make an application to give evidence by way of an affidavit and the opponent is at liberty to crossexamine the person who has filed the affidavit namely the accused and therefore, the impugned judgment and orders of the Courts below does not get vitiated. Hence, the revision petition be dismissed.

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12. It is not in dispute that the accused has tendered his evidence by way of affidavit in lieu of oral evidence. The Apex Court in the aforesaid judgment has held that the accused cannot give his evidence by way of affidavit by virtue of what is contemplated under Section 145(1) of the N.I. Act. It has been specifically held in the said judgment that it is the complainant shall give his evidence by way of affidavit in lieu of oral evidence. But the same is not available to the accused. Submission of the learned counsel for the respondent has also been adverted to in the aforesaid judgment.

13. In view of what has been laid down in the Mandvi Cooperative Bank's case, adverted to above, since the Courts below have acted on the affidavit evidence of the accused, the judgment and orders of conviction and sentence cannot be sustained. In that view of the matter, I proceed to pass the following:

ORDER

(i) Revision petition is allowed.

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• (ii) The impugned judgment and order of conviction and sentence is set aside.
• (iii The matter is remitted back to the trial Magistrate to proceed from the stage of defence evidence.

The learned counsel for the petitioner and respondent submit that they would keep their respective parties present before the learned trial Magistrate on 19.4.2014 without any notice being issued to them. Therefore, the learned Magistrate shall proceed without issuing notice to any of the parties.

Sd/- JUDGE

SA