- 1 - NC: 2025:KHC:1080 CRL.A No. 1713 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 1713 OF 2018 BETWEEN: SMT. ROOPA B R D/O RAMADAS AGED ABOUT 29 YEARS R/AT, GADDEBINDENAHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT – 34. …APPELLANT (BY SRI PRATHEEP K C, ADVOCATE) AND: THIMMEGOWDA S/O LAKKEGOWDA AGED ABOUT 48 YEARS R/AT MURARAHALLI VILLAGE DANDIGANAHALLI HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT – 34. …RESPONDENT (SERVED AND UNREPRESENTED) THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 07.09.2018 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., CHANNARAYAPATNA IN C.C.No.247/2015 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC., Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1080 CRL.A No. 1713 of 2018 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT 1. This appeal is filed by the complainant praying to set aside the judgment of acquittal dated 07.09.2018 passed in C.C. No. 247/2015 by the Principal Civil Judge and JMFC, Channarayapatna, whereunder the respondent - accused has been acquitted for offence under Section 138 of Negotiable Instruments Act (for short hereinafter referred to as `N.I. Act’). 2. The appellant – complainant initiated proceedings against the respondent - accused for offence under Section 138 of N.I. Act and it was pending on the file of Principal Civil Judge and JMFC, Channarayapatna in C.C. No. 247/2015. In the said criminal case the appellant – complainant has been examined as P.W.1 and got documents marked as Ex.P.1 to Ex.P.4. The respondent - accused has been examined as D.W.1 and he has also got - 3 - NC: 2025:KHC:1080 CRL.A No. 1713 of 2018 examined one witness as D.W.2 and got marked Ex.D.1 to Ex.D.5. Statement of the respondent - accused has been recorded under Section 313 of Cr.P.C. Learned Magistrate, after hearing arguments on both sides, formulated points for consideration and passed the impugned judgment of acquittal. Said judgment of acquittal has been challenged in this appeal by the complainant. 3. Heard learned counsel for appellant – complainant. 4. Learned counsel for appellant – complainant would contend that the respondent – accused who has been examined as D.W.1 has tendered affidavit by way of evidence. Even the other witness examined on behalf of the accused as D.W.2 has tendered his evidence by way of affidavit. Learned counsel submits that in view of the judgment of the Hon’ble Apex Court in the case of Mandovi Cooperative Bank Limited Vs. Nimesh B. Thakore reported in 2010 (3) SCC 83 and in the case of Indian Bank Association Vs. Union of India reported - 4 - NC: 2025:KHC:1080 CRL.A No. 1713 of 2018 in 2014 (5) SCC 590, the statute does not confer a right on the accused to file his affidavit by way of evidence. He further submits that based on the said two decisions a coordinate Bench of this Court in the case of Mrs. Zaheda Inamdhar Vs. Dr. Fatima Hassina Sayeedha, W.P. No. 3519/2024 disposed of on 19.07.2024, placing reliance on the said two decisions of the Hon’ble Apex Court, has held that the accused has no right to tender his evidence by way of affidavit. On this ground learned counsel for appellant prays to set aside the impugned judgment of acquittal and remand the matter for leading evidence of accused and his witness as per law. 5. Having heard learned counsel for the appellant – complainant, this Court has perused the impugned judgment of acquittal and the trial Court records. 6. The offence alleged against the respondent - accused is offence under Section 138 of the N.I. Act. In the proceedings initiated against the accused under Section 138 of the N.I. Act the respondent - accused who - 5 - NC: 2025:KHC:1080 CRL.A No. 1713 of 2018 has been examined as D.W.1 has tendered his evidence by way of affidavit. Even the other witness who has been examined on behalf of respondent - accused as D.W.2 has also tendered his evidence by way of affidavit. In the light of the decisions of the Hon’ble Apex Court referred to supra, the N.I. Act only confers a right on the complainant to file an affidavit by way of evidence and the same right is not conferred on the accused. In the instant case, learned Magistrate has committed an error by permitting the respondent – accused (D.W.1) and the witness examined on his behalf (D.W.2) to tender their evidence by way of affidavit. Considering the said aspect the impugned judgment of acquittal passed by the trial Court placing reliance on the evidence of D.W.1 and D.W.2 requires to be set aside and the matter requires to be remanded to the trial Court to proceed from the stage of defence evidence. 7. In the result, the following; O R D E R - 6 - NC: 2025:KHC:1080 CRL.A No. 1713 of 2018 i. The appeal is allowed. ii. The judgment of acquittal dated 07.09.2018 passed in C.C. No. 247/2015 by the Principal Civil Judge and JMFC, Channarayapatna is set aside. iii. The matter is remanded to the Principal Civil Judge and JMFC, Channarayapatna, with a direction to proceed from the stage of defence evidence and dispose of the case in accordance with law on merits. iv. Registry is directed to return the trial Court records along with copy of this judgment. v. The complainant is directed to appear before the trial Court on 18.02.2025. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 20