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TMI Blog2023 (11) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... are referred to as per their status and rank before the Trial Court. 3. Brief facts of the case are that, the accused, in order to purchase a house, approached the complainant during the first week of October, 2008 and availed sum of Rs.3.00 lakh as loan and agreed to repay the same within six months along with interest. When the complainant demanded the accused to repay the amount, the complainant issued cheque No.309107 dated 15th May, 2009 for sum of Rs.3.00 lakh. When the complainant presented the same to his banker for encashment, the same returned with an endorsement 'funds insufficient'. Hence, the complainant caused legal notice dated 25th May, 2009 calling upon the accused to repay the cheque amount. Despite service of not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 402 and a decision of this Court in the case of SMT. H. BHAGYA v. SMT. R. SAVITHRAMMA reported in 2013(1) KCCR 834. On this ground, the learned counsel sought to remand the case to the trial Court for disposal in accordance with law by receiving the evidence of accused. 6. Per contra, Sri Jaykishan Sharma, learned counsel appearing for the respondent-accused, submits that the complainant has failed to discharge his burden as to legally recoverable debt and there is no ground to remand the case back to the trial Court for disposal afresh and accordingly sought for dismissal of appeal. 7. Having heard the learned counsel appearing for parties and on perusal of material on record, the following points would arise for my consideration in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused under Section 313 of the Code of Criminal Procedure was recorded and thereafter, the accused has adduced his evidence as DW1. The examination-in-chief of DW1-A.N. Shivanna, is filed by way of affidavit, which is not in consonance with the provisions of Section 145 of the Negotiable Instruments Act, 1881. In the case of MANDVI CO-OPERATIVE BANK LIMITED (supra), at paragraphs 31 and 32 of the judgment, the Hon'ble Supreme Court has observed as under: "31. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions. 32. On a bare reading of Section 143 it is clear that the legislature provided for the complainant to give his evidence on affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well." 10. The Co-ordinate Bench of this Court, in the case of SMT. BHAGYA (supra), relying upon the judgment of the Hon'ble Supreme Court in the case of MANDVI CO-OPERATIVE BANK LIMITED (supra), at paragraph 11 of the judgment, has observed as under: "11. So, when the law provides specific procedure as to how the evidence has to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court with a direction to provide opportunity to the accused to adduce his evidence in accordance with law. Accordingly, complainant has made out a ground to interfere with the impugned judgment of acquittal and also to remand the case to the trial Court. Hence, I answer Point No.1 in the affirmative. Regarding Point No.2: 12. For the aforesaid reasons and discussions, I proceed to pass the following: ORDER 1. Appeal allowed; 2. Judgment of acquittal dated 03rd February, 2014 passed in CC No.81 of 2010 by the Additional Civil Judge and JMFC, Ramanagar, is set aside and the case is restored to file; 3. Matter is remitted back to the trial Court with a direction to provide opportunity to the accused to adduce his oral evidence in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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