2023 (11) TMI 1121 - HC - Indian Laws

Dishonour of Cheque - Acquittal of accused - insufficient funds - trial Court has recorded the statement accused/respondent on the basis of affidavit instead of examination-in-chief - Section 145 of Negotiable Instruments Act, 1881. Whether the appellant/complainant has made out a ground to remand the matter to the trial Court for fresh disposal in accordance with law? - HELD THAT - On perusal of the provisions of Section 145 of Negotiable Instruments Act, 1881, it is clear that the trial Court has not followed the provisions of Section 145 of the said Act, and the evidence of the accused by way of affidavit is not permissible in law. Relying on the evidence of accused DW1, along with the material contradiction of PW2, the trial Court has acquitted the accused. Since the accused had not adduced his evidence in accordance with law, the same cannot be looked into by this Court. Hence, it is just and proper to remit the matter to the trial 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. 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 - Matter is remitted back to the trial Court with a direction to provide opportunity to the accused to adduce his oral evidence in accordance with law - appeal allowed.

Summary

Issues Involved:
The appeal against the judgment of acquittal dated 03rd February, 2014 passed in CC No.81 of 2010 by the Additional Civil Judge and JMFC, Ramanagar.

Issue 1: Remand of the matter to the trial Court for fresh disposal

The appellant/complainant provided a loan to the accused for purchasing a house, and when the accused failed to repay the amount, the complainant filed a complaint under Section 138 of Negotiable Instruments Act, 1881. The trial Court acquitted the accused based on the evidence presented. However, the appellant argued that the accused's evidence was recorded through an affidavit, which is not permissible under Section 145 of the Act. Citing relevant case law, the appellant sought a remand for proper disposal of the case. The Court agreed that the accused's evidence by way of affidavit was not in accordance with the law, thus remanding the matter to the trial Court for the accused to provide oral evidence as per legal requirements.

Issue 2: Final Order

Based on the above considerations, the Court allowed the appeal, set aside the judgment of acquittal, and restored the case to file. The matter was remitted back to the trial Court with directions to provide the accused an opportunity to adduce oral evidence in compliance with the law. Both parties were instructed to appear before the trial Court without further notice. The trial Court was directed to dispose of the case within six months from the date of receipt of the judgment.