CRL.A/1833/2021 of SRI K SHRIKANTHA RAO Vs SRI M RAGHAVENDRA RAO on 11 September 2026

ORAL JUDGMENT

1. The appellants have preferred these appeals against the judgments of acquittal passed by the LV Addl. City Civil and Sessions Judge, Bengaluru (for short 'Appellate Court') in Crl.A No.2287/2019, Crl.A No.2288/2019, Crl.A No.2285/2019 and Crl.A

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No.2286/2019 dated 28.09.2021, whereby the appeals came to be allowed.

2. For the sake of convenience, the parties herein are referred to as per their status before the trial Court. In Crl.A No.1837/2021:

3. Brief facts leading to this appeal are that, the appellant/complainant had filed a complaint under Section 138 of NI Act before the Court of XVIII Addl. C.M.M, Bengaluru (for short 'the trial Court'), in CC No.9414/2011, for dishonor of cheque of Rs.2,00,000/-. The respondent/accused appeared before the Trial Court. After evidence and arguments, the trial Court, vide judgment dated 04.10.2019, has convicted the accused for the offence under Section 138 of NI Act and sentenced to pay a fine of Rs.3,50,000/-. Being aggrieved by the judgment of conviction and order on sentence, the accused had preferred appeal before the LV Addl. City Civil

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and Sessions Judge, Bengaluru in Crl.A.No.2287/2019. Same came to be allowed on 28.09.2021. In Crl.A No.1833/2021:

4. Brief facts leading to this appeal are that, the appellant/complainant had filed a complaint under Section 138 of NI Act before the Court of XVIII Addl. C.M.M, Bengaluru (for short 'the trial Court'), in CC No.9415/2011, for dishonor of cheque of Rs.1,00,000/-. The respondent/accused appeared before the Trial Court. After evidence and arguments, the trial Court, vide judgment dated 04.10.2019, has convicted the accused for the offence under Section 138 of NI Act and sentenced to pay a fine of Rs.1,80,000/-. Being aggrieved by the judgment of conviction and order on sentence, the accused had preferred appeal before the LV Addl. City Civil and Sessions Judge, Bengaluru in Crl.A.No.2288/2019. Same came to be allowed on 28.09.2021.

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In Crl.A No.1839/2021:

5. Brief facts leading to this appeal are that, the appellant/complainant had filed a complaint under Section 138 of NI Act before the Court of XVIII Addl. C.M.M, Bengaluru (for short 'the trial Court'), in CC No.9417/2011, for dishonor of cheque of Rs.2,00,000/-. The respondent/accused appeared before the Trial Court. After evidence and arguments, the trial Court, vide judgment dated 04.10.2019, has convicted the accused for the offence under Section 138 of NI Act and sentenced to pay a fine of Rs.3,50,000/-. Being aggrieved by the judgment of conviction and order on sentence, the accused had preferred appeal before the LV Addl. City Civil and Sessions Judge, Bengaluru in Crl.A.No.2285/2019. Same came to be allowed on 28.09.2021. In Crl.A No.1851/2021:

6. Brief facts leading to this appeal are that, the appellant/complainant had filed a complaint under Section

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138 of NI Act before the Court of XVIII Addl. C.M.M, Bengaluru (for short 'the trial Court'), in CC No.9418/2011, for dishonor of cheques amount to Rs.10,00,000/-. The respondent/accused appeared before the Trial Court. After evidence and arguments, the trial Court, vide judgment dated 04.10.2019, has convicted the accused for the offence under Section 138 of NI Act and sentenced to pay a fine of Rs.10,80,000/-. Being aggrieved by the judgment of conviction and order on sentence, the accused had preferred appeal before the LV Addl. City Civil and Sessions Judge, Bengaluru in Crl.A.No.2286/2019. Same came to be allowed on 28.09.2021.

7. Being aggrieved by the judgment of Acquittal, the complainant/appellant has preferred these appeals.

8. The learned counsel appearing on behalf of the appellant would submit that the respondent/accused has adduced his defence evidence by way of affidavit, which is

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not permissible under law. Hence, he sought for remanding the cases to the trial Court with a direction to provide opportunity to the accused/respondent to adduce the evidence in accordance with law. To substantiate his argument, the learned counsel relied on the decision reported in 2010(3) SCC 83, MANDVI CO-OPERATIVE BANK LIMITED vs NIMESH B. THAKORE (2010) 3 SCC 83 and also the decision of Co-ordinate Bench of this Court in W.P.No.3519/2024 (GM-RES) decided on 19.07.2024 in the case of MRS. ZAHEDA INAMDHAR vs. FATIMA HASSINA SAYEEDHA and sought to remand the case to the Trial Court with a direction directing the accused/respondent to adduce his evidence and proceed with the case in accordance with law.

9. As against this, the learned counsel for the respondent would submit that, since the Appellate Court has acquitted the accused on merits, the question of remitting the matter to the Trial Court does not arise, and accordingly, sought for dismissal of the appeals.

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10. I have heard the arguments on both sides and perused the materials on record. At this stage, the only question that arises for my consideration is:

Whether the appellant has made out ground to remand the case to the Trial Court for disposal in accordance with law?

What order?

11. My answer to the above points are as under:

Point No.1: In the Affirmative.

Point No.2: As per Final Order.

12. I have examined the materials placed before this Court. The appellant being the complainant, had filed a complaints before the trial Court under Section 138 of NI Act for dishonoring of cheques. After trial, the Trial Court has convicted the accused for the offence under Section 138 of NI Act and sentenced to pay fine. Being aggrieved by the judgment of conviction and order of sentence, the respondent/accused had preferred the appeals before the Appellate Court. The Appellate Court has allowed the

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appeals on merits. But the Appellate Court has not discussed about the acceptance of evidence by the accused by way of an affidavit. For the first time the Appellant's Counsel has raised this point before this Court, which is purely a question of law.

13. On perusal of the materials placed before the Court, it is seen that, after adducing the evidence of the complainant, the respondent-K.Srikantha Rao, S/o Late K.Hariramakrishna Rao, has adduced the evidence as DW1 by way of affidavit. Without assigning any reasons, the Trial Court has accepted the affidavit evidence, which is not permissible under law.

14. The Hon'ble Supreme Court in the case of MANDVI CO-OPERATIVE BANK LIMITED (supra), at paragraphs 49 to 52, has observed as under:

"49. Coming back to the first error in the High Court's reasoning, in the guise of interpretation it is not permissible for the Court to make additions in the law and to read into it something that is just not

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there. In Union of India V. Deoki Nandan Aggarwal this Court sounded the note of caution against the court usurping the role of legislator in the guise of interpretation. The Court observed: (SCC p. 332, para 14)

"14..... It is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught the legislative judgment is subversive of the constitutional harmony and comity of instrumentalities."

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50. In Raghunath Rai Bareja v. Punjab National Bank while observing that it is the task of the elected representatives of the people to legislate and not that of the Judge even if it results in hardship or inconvenience, the Supreme Court quoted in affirmation, the observation of Justice Frankfurter of the US Supreme Court which is as follows: (SCC p. 244, para 41)

"41. As stated by Justice Frankfurter of the US Supreme Court (see 'Of Law and Men: Papers and Addresses of Felix Frankfurter'):

Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great Judges have constantly admonished their brethren of the need for discipline in observing the limitations. A Judge must not rewrite a statute, neither to

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enlarge nor to contract it. Whatever temptations the statesmanship of policy- making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction.' "

51. In Duport Steels Ltd. v. Sirs Lord Scarman expounded the legal position in the following words: (WLR p. 168 G-H : All ER p. 534)

"But in the field of statute law the Judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes, and unmakes, the law: the Judge's duty is to interpret and to apply the law, not to change it to meet the Judge's idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions are possible. But our law requires the Judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the Judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute."

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52. In the light of the above we have no hesitation in holding that the High Court was in error in taking the view, that on a request made by the accused the Magistrate may allow him to tender his evidence on affidavit and consequently, we set aside the direction as contained in sub-para (r) of para 45 of the High Court judgment. The appeal arising from SLP (Crl.) No. 3915 of 2006 is allowed."

15. Relying on the judgment of the Hon'ble Supreme Court in the case of MANDVI CO-OPERATIVE BANK (supra) the Co-ordinate Bench, of this Court in WP.No.3519/2024 (supra) has held as under:

"The proceedings of the Learned Magistrate who has permitted filing of evidence by way of an Affidavit by the accused is illegal and unsustainable."

16. Considering the facts and circumstances of the case and keeping in mind the aforesaid decisions of the Hon'ble Supreme Court and also the decision of the Co-ordinate bench of this Court, I answer Point No.1 in affirmative.

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Regarding Point No. 2:

17. For the aforesaid reasons and discussions, I proceed to pass the following:

O R D E R

(i) Appeals are allowed;

(ii) The judgments of Conviction and Orders on sentence passed by the XVIII Addl. C.M.M., Bengaluru, dated 04.10.2019

passed in CC.Nos.9414, 9415, 9417 and 9418/2011 dated 04.10.2019, are set aside;

(iii) The judgments of Acquittal dated 28.09.2021 passed in Crl. A Nos.2287, 2288, 2285 and 2286/2019 by the LV Addl. City Civil and Sessions Judge, Bengaluru are hereby set aside;

(iv) The cases are remitted back to the XVIII Addl. C.M.M., Bengaluru with a direction to

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provide an opportunity to the accused to adduce his oral evidence; and after recording the evidence, the Trial Court is directed to dispose of the case in accordance with law, within 6 months from the date of receipt of this judgment;

(v) Both parties are directed to appear before the Trial Court on 07.10.2026, without seeking any further notice;

(vi) Registry is directed to send the copy of this judgment along with Trial Court Records to the concerned Court forthwith.

Sd/- (G BASAVARAJA) JUDGE

KBM List No.: 1 Sl No.: 44