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TMI Blog2023 (12) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the trial Court. 3. The brief facts of the complainant is that the accused was doing coffee business at Ponnampet town, under the name and style of "Ganesha traders". On 20.02.2002 accused purchased 73 bags of Robust Cherry Coffee at the rate of Rs.1000/- per bag, each bag containing 50 Kgs. Out of the total consideration, accused paid a sum of Rs.1000/- in cash and towards balance consideration he has issued a post dated cheque drawn on Canara Bank, Ponnampet vide cheque No.0358106 dated 14.08.2003 for a sum of Rs.72,000/- in favour of the complainant. When the complainant presented the cheque for collection, the said cheque was dishonoured with a endorsement "Insufficient fund". Complainant issued legal notice on 21.08.2003 calling u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onment for a period of one year. 7. Being aggrieved by the impugned judgment of conviction and order of sentence, the accused has preferred this appeal before the II Additional District and Sessions Judge, Kodagu- Madikere (Sitting at Virajpet) in Crl.A.No.40/2012 and the same was allowed by the appellate Court on 09.05.2014 and acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Being aggrieved by the impugned judgment of acquittal passed by the appellate Court, the appellant/complainant has preferred this appeal. 8. The learned counsel appearing on behalf of the appellant has submitted his argument that the appellate Court has not properly appreciated the evidence on record in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting at Virajpet). 2) Whether the appellant/complainant has made out a ground to allow the application filed under Section 391 of Cr.P.C. 3) What order? My answer to the above points are as under: Point No.(1) :Affirmative, Point No.(2) :Affirmative, Point No.(3) :As per final order. 11. I have carefully examined the materials on record placed before this Court. The complainant has filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheque of Rs.72,000/- issued by the accused as per Ex.P1. 12. To prove the defence of accused 2 witnesses were examined as DW1 and DW2. DW1 and DW2 have adduced the evidence instead of examination-in-chief by way of affidavit, which is contrary to the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. 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 complaint under Section 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds 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 nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d orders will have to be set aside.". 14. The appellate Court has accepted the defence set up by the accused and acquitted the accused. The evidence of DW1 and DW2 which is in the form of affidavit instead of examination-in-chief is not permissible under law, the same cannot be looked into. However, the appellate Court has not observed the same and passed the impugned judgment of acquittal which is not sustainable under law. On these grounds, it is just and proper to remand the case to the trial Court with a direction to provide an opportunity to the accused to adduce his evidence in accordance with law. Regarding Point Nos.1 and 2 : 15. With regard to the application filed under Section 391 of Cr.P.C is concerned, in the affidavit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2012 is set-aside. 4. I.A.No.1/2014 filed under Section 391 of Cr.P.C is allowed. 5. The case is remitted back to the trial Court with a direction to provide an opportunity to the complainant to adduce the evidence of handwriting expert as sought in the application filed under Section 391 of Cr.P.C. 6. The complainant is also directed to adduce any additional evidence, if any. 7. The trial Court is also directed to provide an opportunity to the accused to adduce the defence evidence in accordance with law. 8. The complainant/appellant is directed to appear before the trial Court without seeking further notice from the trial Court on 10.01.2024. 9. The trial Court is directed to secure the presence of accused and proceed with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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