- 1 - HC-KAR NC: 2026:KHC:5095 CRL.A No. 1851 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 1851 OF 2022 BETWEEN: SRI. G.N. SUBRAMANI S/O LATE NAREPPA AGE ABOUT 43 YEARS R/AT NO.2824, 7TH MAIN, KUMARASWAMY LAYOUT, 2ND STAGE, BENGALURU - 560 078. …APPELLANT (BY SRI. JAGADISH J.R, ADVOCATE) AND: SRI. V. SRINIVAS S/O VENKATAPPA, AGE ABOUT 45 YEARS R/AT NO. 106, J. VADDARA COLONY SRINIVASAPURA TALUK - 563 135, KOLAR DISTRICT. …RESPONDENT (BY SRI. ANAND R.V, ADVOCATE) THIS CRL.A. IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 24.12.2019 PASSED BY THE LXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-76) IN CRL.A.NO.868/2019 PRODUCED AT ANNEXURE-A CONFIRM THE JUDGMENT OF CONVICTION PASSED VIDE JUDGMENT DATED 14.03.2019 PASSED BY THE XIII ADDL.C.M.M., BENGALURU IN C.C.NO.15650/2017 FOR THE OFFENCE P/U/S 138 OF N.I. ACT AND ALSO COMPENSATE THE PETITIONER/COMPLAINANT APPROPRIATELY AND ETC. Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:5095 CRL.A No. 1851 of 2022 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT The appellant/complainant has preferred this appeal against the judgment of acquittal dated 24.12.2019 passed by the LXXV Additional City Civil Judge and Sessions Judge, Bengaluru in Crl.A.No.868/2019. 2. The parties are referred to the same rank as before the trial Court. 3. The brief facts leading to this appeal are that the appellant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') in CC.No.15650/2017. It is alleged by the complainant that the accused borrowed a loan of Rs.6,50,000/- for his legal necessities during fourth week of August, 2016. The accused had accompanied one Surendra K.V., who is the relative of the complainant and working in KEB at Srinivaspura. As per the recommendation of the said relative, the complainant advanced the loan to the accused. He promised to return the loan within - 3 - HC-KAR NC: 2026:KHC:5095 CRL.A No. 1851 of 2022 three months. But he did not repay the same as promised. After persistent demand for repayment of the said loan, he got issued a post-dated cheque dated 01.02.2017 for Rs.6,50,000/-. On presentation of the said cheque for encashment to the Karnataka Bank Limited, City Civil Court Branch, Bengaluru, the same was dis-honored with an endorsement 'insufficient funds'. He got issued legal notice dated 27.02.2017 which was duly served to the accused. Thereafter, the accused neither paid the cheque amount nor given reply. Hence, the complainant has filed a complaint under Section 138 of the NI Act. 4. In pursuance of summons, the accused appeared before the trial Court and enlarged on bail. The substance of plea was recorded, the accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the complainant got examined as PW.1 and 13 documents were marked as Ex.P1 to Ex.P13. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C., was recorded. The accused has totally denied the evidence of PW.1 and he himself - 4 - HC-KAR NC: 2026:KHC:5095 CRL.A No. 1851 of 2022 has adduced evidence as DW.1 by filing affidavit instead of oral examination-in-chief. 5. Having heard the arguments on both sides, the trial Court has convicted the accused for the offence under Section 138 of the NI Act and sentenced to pay fine of Rs.6,50,000/- and in default of payment of fine, the accused shall undergo simple imprisonment for a period of six months and out of the said fine amount, sum of Rs.6,45,000/- shall be paid to the complainant as compensation under Section 357 of Cr.P.C. Being aggrieved by the same, the accused/appellant has preferred an appeal before the LXXV Additional City Judge and Sessions Judge, Bengaluru in Crl.A.No.868/2019, which came to be allowed by the order dated 24.12.2019 and the accused/respondent was acquitted. Being aggrieved by the said judgment of acquittal passed by the Appellate Court, the complainant/appellant has preferred this appeal. 6. Learned counsel for the appellant has reiterated the averments made in the memorandum of appeal and sought for allowing of this appeal. - 5 - HC-KAR NC: 2026:KHC:5095 CRL.A No. 1851 of 2022 7. As against this, learned counsel for the respondent would point out that the accused/appellant has adduced his evidence by way of affidavit instead of examination in-chief, which is not permissible under law. To substantiate his argument, learned counsel has relied on the decision of the Hon'ble Apex Court in the case of MANDOVI CO-OPERATIVE BANK LIMITED Vs. NIMESH B THAKORE reported in (2010)3 SCC 83 and sought for remand the case to adduce the oral evidence of accused. 8. Having heard the arguments on both sides and on perusal of materials placed before this Court, the following points would arise for my consideration: 1. Whether the trial Court has committed an error in accepting the evidence of DW.1, by way of affidavit? 2. Whether the Appellate Court has committed an error in accepting the contents of affidavit of DW.1 which is filed instead of examination-in-chief? 3. What order? - 6 - HC-KAR NC: 2026:KHC:5095 CRL.A No. 1851 of 2022 9. My answer to the above points are as under: Point Nos.1 and 2 - Negative. Point No.3 - As per final order. Regarding Point Nos.1 and 2: 10. I have examined the materials placed before this Court. 11. To prove the guilt of the accused, the complainant himself got examined as PW.1 and got marked 13 documents as Ex.P1 to Ex.P13. On closure of prosecution side evidence, the accused himself got examined as DW.1. He has filed his affidavit evidence instead of examination-in-chief. In view of the decision of the Hon'ble Apex Court in the case of MANDOVI CO-OPERATIVE (supra), the trial Court ought not to have received the affidavit of DW.1 instead of examination-in-chief. In paragraph No.15 of the judgment of the Appellate Court, it has observed that the accused has taken the defence that he had given blank cheque as security to one Surendra K.V. - 7 - HC-KAR NC: 2026:KHC:5095 CRL.A No. 1851 of 2022 12. Under the given facts and circumstances and in view of the decision of the Hon'ble Apex Court, it is necessary to remand the case to the trial Court with a direction to record the oral evidence of DW.1 in accordance with law. Accordingly, I answer point Nos.1 and 2 in the negative. Regarding Point No.3: 13. In the result, I proceed to pass the following: ORDER i) The appeal is partly-allowed. ii) The judgment of conviction passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru in CC.No.15650/2017 dated 14.03.2019, which is reversed by the LXXV Additional City Civil and Sessions Judge, Bengaluru (CCH-76) in Criminal Appeal No.868/2019 dated 24.12.2019 is set aside. - 8 - HC-KAR NC: 2026:KHC:5095 CRL.A No. 1851 of 2022 iii) The matter is remitted back to the trial Court with a direction to adduce further oral evidence of both parties, in accordance with law. iv) As the case is of the year 2017, the trial Court is directed to dispose of the case within a period of three months from 25.02.2026, in accordance with law. v) Both parties are directed to appear before the trial Court without seeking any further notice from the trial Court on 25.02.2026. vi) Registry is directed to send a copy of this judgment along with TCR to the trial Court. Sd/- (G BASAVARAJA) JUDGE PHM List No.: 1 Sl No.: 35