Smt. S.R. Uma vs Sri C Nagarajaiah and M/s N V Enterprises

A.S. Pachhapure

The appellant has challenged the judgment and order acquitting the respondents for the charge u/s 138 of the Negotiable Instruments Act (hereinafter referred to as ''the Act'' for short) on a trial held by the Additional Chief Metropolitan Magistrate, Bangalore City. The facts reveal that the appellant is the complainant and the respondents are the accused before the court below and the appellant claims that she had advanced a sum of Rs. 8,00,000/- to the respondent No. 1 to appoint her as a distributor for the gas agency and towards the refund of the said amount the respondent No. 1/accused No. 1 is said to have issued a cheque dated 21.2.2002. When the said cheque was presented for encashment, it returned with an endorsement of ''insufficient funds''. The appellant issued a notice and as the said notice is not claimed by the respondent No. 1, a complaint came to be filed to initiate action for the offence punishable u/s 138 of the Act.

The respondent did not plead guilty and therefore the appellant examined herself as PW1 and in her evidence the documents Exs. P1 to P10 were marked. The statement of the respondent No. 1 was recorded u/s 313 Cr.P.C. The accused examined himself as DW1 and other witnesses DWs. 2 to 6 and the documents Exs. D1 to D4 have been marked in their evidence. The trial court after hearing the counsel for the parties and on appreciation of the material on record acquitted the accused for the said charge. Aggrieved by the acquittal, the present appeal has been filed.

I have heard the learned counsel for both the parties.

It is the contention of the learned counsel for the appellant that the signature on the cheque is not in dispute. Therefore, she contends that there is presumption u/s 139 of the Act and as the material placed on record is insufficient to rebut the presumption, the trial court committed an error in acquitting the accused for the said charge.

On the other hand the learned counsel for the respondents submit that the accused has been examined as DW1 and the witnesses are also examined in addition to the production of the documents Exs. D1 to D4 and he contends that the cross-examination of PW1 and the material placed on record is sufficient to rebut the presumption. Hence, he contends that the judgment and order passed by the trial court is in accordance with law.

Both the counsel have relied upon the evidence of the other witnesses including the evidence of DW1- the respondent (accused). But anyhow as could be seen from the record, the accused has filed an affidavit dated 3.2.2006 in lieu of his chief examination and the trial court has accepted the said affidavit and permitted the appellant to cross-examine DW1. This procedure adopted by the trial court in recording the evidence of DW1 is contrary to the provision of Section 145 of the Act. The said provision is extracted hereunder for the sake of convenience:

Section 145(1): Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

As could be seen from the aforesaid provision, the evidence of the complainant could be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceedings.

The said provision does not contain reference to an accused and his discretion to file an affidavit in lieu of chief examination. Therefore, a legislative intent was only to permit the complainant to file an affidavit in lieu of chief examination and not the accused.

On this aspect of the matter, the Apex Court in a decision reported in Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore, in the case of M/s. Mandvi Co-Operative Bank Ltd., Vs. Nimesh B. Thakore has observed as under:

But in the field of statute law the judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes and unmakes the law. The Judge''s duty is to interpret and to apply the law not to change it to meet the judge''s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing construction are possible. But our law require the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute.

In view of the aforesaid observation it held that the direction of the High Court to the trial court to permit the accused to file an affidavit in lieu of chief examination was set aside. The procedure of permitting accused to file an affidavit is not the intent of Section 145(1) of the Act. So, there is inherent defect in the procedure adopted by the trial court permitting the accused to file his affidavit in lieu of his chief examination and therefore the evidence of DW1 cannot be accepted. In these circumstances, the consequent order passed by the trial court is also erroneous and illegal. In the result, this appeal is allowed. The judgment and order acquitting the respondents for the charge u/s 138 of the Act is set aside. The matter is remitted back to the trial court with a direction to record the evidence of the respondent and dispose of the case in accordance with law.

To avoid the delay, both the parties are directed to appear before the Additional Chief Metropolitan Magistrate, Bangalore, on 10.1.2013 without waiting for the summons.