- 1 - HC-KAR NC: 2025:KHC:42641 CRL.A No. 2216 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 2216 OF 2018 (A-) BETWEEN: 1. SRI UMA MAHESH P S/O PUTTASWAMACHAR, AGED ABOUT 36 YEARS, RESIDING AT NO 30, 3RD FLOOR, AVENUR ROAD CROSS, CHOWDESHWARIGUDI BEEDI SARADA MARKET CITY STREET BENGALURU - 560002 …APPELLANT (BY SRI. B J KRISHNA, ADVOCATE) AND: 1. SRI MITHUN BHUVI S/O GANESH BHUBI AGED ABOUT 33 YEARS NO 11/1, A T SRTEET, B FLOOR, CUBBONPET, BENGALURU - 560002 AND ALSO RESIDING AT SRI MITHUN BHUI S/O GANESH BHUI RESIDING AT C/O AT AJAY BHUVI NO 24, SANJEEVAPPA LANE, CUBBONPET CROSS, BENGALURU - 560002 …RESPONDENT (BY SRI H.M. GIRISHA, ADVOCATE) Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42641 CRL.A No. 2216 of 2018 THIS CRL.A. IS FILED U/S.378(4) CR.P.C BY THE ADVOCATE FOR THE APPELLANT/S PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 25.08.2018 PASSED BY THE 12TH ADDL. AND XXXVII ADDL.C.M.M., BENGALURU IN C.C.NO.25502/2017-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT Complainant/appellant has preferred this appeal against the Judgment of acquittal dated 25th August 2018 passed in CC No.25502 of 2017 by XII Additional Chief Metropolitan Magistrate, Bengaluru (for short "the trial Court"). 2. Brief facts leading to this appeal are that the appellant filed complaint under section 138 of Negotiable Instruments Act, 1881. Cognizance was taken by the trial Court and case was registered in CC No.25502 of 2017. Plea was recorded. Accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, complainant examined as PW1 and six documents were marked as Exhibits P1 to P6. Thereafter, accused has adduced his evidence as DW1 and 10 documents were marked as Exhibits D1 to D10. Having heard - 3 - HC-KAR NC: 2025:KHC:42641 CRL.A No. 2216 of 2018 on both sides, the trial Court acquitted the accused. Being aggrieved by the Judgment of acquittal, complainant has preferred this appeal. 3. Sri B.J. Krishna, learned Counsel appearing for the complainant submits that the complainant has proved the essential ingredients of section 138 of NI Act. However, the trial Court has acquitted the accused on the ground that the complainant has misused the cheque issued by the accused in favour of one Babu on the basis of defence evidence adduced by the accused by way of affidavit on 27th July 2018. The learned Counsel would submit that the same is not permissible under law. He would submit that the acceptance of evidence way of affidavit, is not permissible under Section 145 of Negotiable Instruments Act. To substantiate his argument, he would rely on the decision of the Co-ordinate Bench of the Court in Writ Petition No.3519 of 2024 decided on 19th July, 2024 rendered in the case of MRS. ZAHEDA INAMDHAR v. DR. FATIMA HASSINA SAYEEDHA and Order passed in Crl.RP No.1419 of 2023 dated 29th August, 2024 rendered in SRI SATHYA KUMAR v. LEELAVATHI AND OTHERS, and sought to remand the case to the trial Court with a direction to provide an - 4 - HC-KAR NC: 2025:KHC:42641 CRL.A No. 2216 of 2018 opportunity to the accused to adduce his oral evidence instead of affidavit evidence. 4. Respondent/accused absent and unrepresented. Hence, argument on behalf of respondent, is taken as nil. 5. Having heard the arguments advanced by the learned Counsel for the appellant and on perusal of materials placed before me, the following points would arise for consideration: 1) Whether the complainant/appellant has made out to ground to remand the case to the trial Court with a direction to provide an opportunity to the accused/respondent to adduce his evidence in accordance with law? 2) What order? Regarding Point No.1: 6. I have examined the materials place before me. After completion of evidence, DW1-Mithun Bhui has filed evidence by way of affidavit on 27th July 2018. The Co-ordinate Bench of this Court relying upon the decision of the Apex Court in the - 5 - HC-KAR NC: 2025:KHC:42641 CRL.A No. 2216 of 2018 case of MANDOVI CO-OPERATIVE BANK LIMITED v. NIMESH B. THAKORE reported in (2010)3 SCC 83 and other decisions, has held that the receiving of evidence by way of by the affidavit is illegal. Without expressing any opinion, on the merits of the case, keeping in mind the aforestated decisions, I am of the opinion that the complainant/appellant has made out ground to remand the case to the trial Court with a direction to provide opportunity to the respondent/accused to adduce his oral evidence instead of filing evidence by way of affidavit. Accordingly, the appellant/complainant has made out a ground to remand the case to the trial Court with a direction to provide an opportunity to the accused/respondent to adduce his oral evidence. Hence, I answer Point No.1 in the affirmative. Regarding Point No.2: 7. In the result, I proceed to pass the following: O R D E R i) Appeal is allowed in part; ii) Judgment of acquittal dated 25th August 2018 passed in CC No.25502 of 2017 by XII Additional Chief Metropolitan Magistrate, Bengaluru, is set aside; - 6 - HC-KAR NC: 2025:KHC:42641 CRL.A No. 2216 of 2018 iii) Matter is remitted back to the trial Court with a direction to provide opportunity to the accused/respondent to adduced his oral evidence, instead of filing affidavit evidence, and proceed with the case in accordance with law; iv) Registry to send the copy of this order along with trial court records to the concerned Court; v) Complainant-appellant is directed to appear before the trial Court on 01st December, 2025, without seeking any further notice; vi) The trial Court is directed to dispose of the case as expeditiously as possible, as the matter is of the year 2017. Sd/- (G BASAVARAJA) JUDGE lnn List No.: 1 Sl No.: 80