IN THE HIGH COURT OF IKARNATAKA CIRCUIT BENCH AT DHARWAD DATEL) THIS THE 18 DAY OF OCTOBER 20] BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL APPEAL No.254f0O6 BET\VEEN S. S To run an S/u ShI\appa Tunmani. Age: Dl \ (ins. Residing at Saptapur, Dharwad. Appellant (By SOn Ravi S. Mathur, Advocate for Sun and A. Pachhapure Advocate) AND: 1. N,B,Todakar, Age: Major. R/o Todakar Buildings, v1ichagin Compound, Saptapur, Dharwad, 2. V.5. Lad .Age: Major, 3. US. Lad, Age: Major, Respondents No.2 and 3 are Residing at Lad buildings. Michagin Compound, Saptapur. Dharwad. 41 B. N Sappuni. Age. Major. S Ii > (J p V ich:igin Compound, Saprapun. I) \1Cl a - Respondents (By G.S.V. Associates and V.1<. Naik, Advocates.) This Criminal Appeal is filed under Section 378 Code of Criminal Procedure praying to set aside the judgment dated 28.11.2005 passed by the Prl. C.J. (Jr. Dn.) and JMFC., Dhanvad in C.C.No.277/2002-. acquitting the respondents for the offence punishable under Section 138 of Negotiable Instrument Act. This Appeal coming on for hearing this day, the Court mde the following: JUDGMENT Heard the learned counsel for the appellant. - 2. The appellant was the complainant before the Court below who had lodged a complaint for an offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to a&N.I. Act’ for brevity) against the respondents herein. The said complaint was contested by the accused-respondent. The court below has proceeded on the footing, that though there is presumption under Section 139 of N.I. Act. Insofar as the cheque in question having been issued in discharge of a legal liability and that a presumption is raised in favour of the holder of the S cheque, has proceeded to address the defence raised by the respondent. who had chosen to mark certain exhibits through the complainant and did not choose to tender evidence independently. But HAD also produced certain other documents numbering 6, which were not marked in evidence, but were relied upon in the course of arguments to contend that the presumption in favour of the complainant. Insofar as the issuance of the cheque in question is concerned, would stand rebutted and that there is no legal liability in respect of which, the cheque could have been issued and in this regard have placed reliance on the documents which were produced, but were not marked in the course of evidence either through the complainant or by the accused examining themselves. The court below while observing that accused had denied the incriminating evidence placed b.v the complainant, the accused had produced their statements along with 6 documents and though they have not been marked in the case, the Court has proceeded to hold that there is no bar to. S. 4 consider the said statements produced under the statement recorded under Section 313 Code of Criminal Procedure. 3. From a reading of Section 313 Code of Criminal Procedure. the learned counsel for the appellant would point out that there is no such indication that documents that may be produced along with statements of the accused could be looked into for the purposes of evidence and further, the rebuttal evidence on behalf of the accused would require to be tendered expressly in order to dislodge the presumption in favour of the complainant. This not having been done the accused seeking to place reliance on documents which were not even marked in evidence would vender the positive rule under the Karnataka Criminal Rules of Practice. 1968. as provided under chapter 7 Rule 13, which mandates the manner in which the documents can be accepted as exhibits in the course of a trial. This not having been complied with by the accused, the Court below 1 proceeding to rely on the same while holding that there is no bar, would render the very rule redundant and therefore reliance placed on those documents is without jurisdiction and to the detriment of the complainant, who would otherwise succeed on the basis of the presumption under Section 139 of Negotiable Instrument Act. 4. The learned counsel would apart from the other grounds raised in the present appeal, would urge the above circumstance as vitiating the entire proceedings. 5. The learned counsel for the respondent has remained absent though the matter was heard on more than one occasion. In that view of the matter, and given the above circumstance, which certainly vitiates the proceedings, as the documents which are referred to, are sought to be treated as part of rebuttal evidence to dislodge the presumption in favour of the complainant would cause serious prejudice to the complainant, who would otherwise succeed on the basis of the ‘S 6 b presumption under Section 139 of the Negotiable lnstrunwnts Act. Therefore. the Court below has committed a grave error in relying upon the documents without even the express evidence of the accused being placed on record. Therefore, on that ground alone without entering upon the other grounds that are raised in the present appeal, the appeal is allowed. The judgment of the court below is set aside and the matter is remanded for a rehearing on the material available without reference to the 6 documents that are said to have been produced by the accused which have not been marked in evidence and the Court below shall rehear the matter and pass judgment in accordance with law. The office is directed to return the records. JUDGE bvv